3  1 

I! 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

Law  Section 
California  State  Library 


THE 


JURISDICTION  AND  POWERS 

OK   THE 

UNITED  STATES  COURTS 

AND 
OF    TIIE 

SUPREME  COURT   OF  THE  UNITED  STATES 

AND    OK   TIIE 

CIRCUIT  AND  DISTRICT  COURTS 

IN 

EaUITY  AND   ADMIRALTY 

WITH    NOTES     AND     KEFEEENCES 

AND    AN 

APPENDIX 

CONTAINING  THE  ORDERS  OF  THE   HIGH   COURT  OF   CHANCERY  OF 

ENGLAND,  IN  FORCE  IN  1842,  AND  THE  NEW  ORDERS 

OF  THE  SAVIE  COURT  OF  1845 

AND   TIIE 

TIMES  AND  PLACES  OF  HOLDIIVG  THE 

UNITED    STATES    COURTS 


BY  STEPHEN  D.  LAW 

COUNSELLOR  OF  THE  SUPREME   COURT  OF  THE  TTNTTED   STATES 


ALBANY 
LITTLE  &  COMPANY 

LAW  BOOKSELLERS   AND  PUBLISHERS 
1852 


1 


Entered  according  to  Act  of  Congress,  in  tlie  year  eighteen  hundred  and  fifty-two,  by 

LITTLE  &.  CO., 

in  the  Clerk's  office  of  the  District  Court  of  the  United  States,  for  the  Northern  District  of  New- York. 


WEED,   PAESONft  A>-0  COMPANV, 
PEINTEKS. 


NO 

■A 


THE  HOXORAELE 

ROGER  B.  TANEY, 

CHIEF  JUSTICE 

OP  THE 

'iipimt  €mxt  si  %  lliiitcir  States, 

THIS     WOEK 

IS 

WITH    UIS    PERMISSION    MOST    RESPECTFULLY 

DEDICATED 

BT  THE 

AUTHOE. 


PREFACE. 


This  volume  originated  in  a  want,  exj^erienced  by  tte 
autlior,  for  a  work  of  a  similar  character;  and  it  is  now 
submitted  to  the  public,  and  more  particularly  to  bis 
brethren  of  the  Legal  Profession,  with  the  hope  that  it 
may  prove  to  them  both  acceptable  and  useful. 

The  author  does  not  claim  for  his  work  the  character  of  a 
labored  and  critical  Treatise  upon  the  Federal  Courts  of  the 
United  States,  nor  has  he  even  attempted  to  invest  it  ■\*vdth 
the  style  and  dignity  of  an  Essay,  though  such  a  labor  would 
have  been  as  easy,  or  easier,  than  to  have  retained  the  pre- 
sent arrangement.  But  it  has  been  his  single  wish,  and  con- 
stant aim  and  endeavor  to  prepare  a  volume  worthy  of  be- 
ing esteemed  not  merely  a  con/veniejit  but  a  necessary  Book 
OF  Reference  for  the  practitioner  in  the  Federal  Courts ; 
and,  what  is  most  important,  to  make  it,  from  the  correct- 
ness of  its  statements  of  Statute  Law,  and  Judicial  Decision, 
reliable  as  an  authoeity,  upon  the  matters  treated  in  it.  In 
stating,  therefore,  the  Statute  Law,  he  has  given  it  as  it  has 
been  enacted  by  the  Legislative  Authority  ;  and  in  quoting 


vi  PREFACE. 


Judicial  Decisions,  lie  lias,  in  most  cases,  adopted  tlie  lan- 
guage made  use  of  by  tlie  courts.  The  actual  words  of  the 
Law,  and  the  literal  Judicial  Interpretation  thereof,  are 
thus  spread  before  the  reader.  Those  who  have  learned 
from  experience  how  necessaiy  it  often  is  to  know  the 
exact  phi-aseology  of  the  statute,  and  the  actual  ruling  of 
the  court,  will,  he  believes,  appreciate  and  approve  this 
method  of  compilation. 

The  author  does  not,  however,  presume  for  his  work,  entire 
exemption  from  error  or  mistake.  He  only  claims  that  he 
has  spared  no  effort  or  care  to  ensure  its  correctness,  and 
that  no  intentional  or  known  error  or  mistake  has  been  per- 
mitted in  its  pages.  That  a  better  volume  could  have  been 
prepared,  had  a  more  experienced  practitioner  compiled 
it,  he  is  willing  to  believe ;  and  he  is  also  confident  that 
he  could  himself  make  the  work  more  valuable,  had  he  again 
to  perform  the  labor. 

Should  his  professional  brethren  place  such  an  estimate 
upon  its  worth  as  to  render  a  second  edition  necessary,  he 
trusts  and  beheves  he  will  be  able — his  life  and  health 
being  spared  —  to  render  the  work  more  deserving  of  their 
patronage,  and  of  greater  assistance  to  them. 

New-Yoek,  April,  1852. 


CONTENTS. 


*^*  Full  Indexes  will  be  found  immediately  following  each  general  division. 

Pages. 

Jurisdiction  of  Federal  Courts, 1  to  294 

Constitutional  Provisions, 1  to     23 

Powers  in  Common, 23  to     93 

Jurisdiction  Supreme  Court, 93  to  133 

Circuit  Court, 133  to  183 

"             District  Court, 183  to  215 

"             Courts  District  Columbia, 215  to  243 

Territorial  Courts, 243  to  253 

Costs, 253  to  294 

Index, 294  to  361 

Rules  of  the  Supreme  Court, 361  to  409 

Index, 409  to  429 

Rules  in  Equity, 429  to  505 

Index, 505  to  529 

Rules  in  Admiralty, 529  to  579 

Index, 579  to  597 

APPENDIX. 

English  Orders  in  force  1842, 603  to  711 

Index, 711  to  737 

English  Orders  of  1845, 737  to  799 

Index, 799  to  808 


viii  CONTENTS. 


Pages. 

Chief  Ju.stices  Supreme  Court, 811,  812 

Associate  Justices  Supreme  Court, 813  to  818 

Supreme  Court,   (as  now  composed,) 818 

Clerks  Supreme  Court, 819 

Reporters  Supreme  Court, 819 

Circuit  Courts  ;  times  and  places  of  holding,  and  officers  of,  821  to  827 

District  Courts ;  times  and  places  of  holding,  and  officers 

of, 827  to  844 

Territorial  Courts  ;  times  and  places  of  holding,  and  offi- 
cers of, 844,  845 


JURISDICTION 


OF    THE 


FEDERAL  COURTS  OF  THE  UNITED  STATES. 


CONSTITUTIONAL    TROVISIONS. 


JURISDICTION 


FEDERAL   COURTS. 


CONSTITUTIONAL  PROVISIONS. 


CONSTITUTION  OF  THE  UNITED  STATES. 
Art.  III.  Sec.  1. 

The  judicial  power  (1)  of  the  United  States    art^iu. 
!<hall    be  vested  in  one  supreme  court,   and    in  judkiai 

nnwer  ol 


power  of 

United 

States, 


(i)  Tlic  courts  of  the  United  States  are  all  of  limited  juris-   where 

•     •  vpstctl* 

<liction,  and  their  proceedings  are  erroneous  if  the  jurisdiction 

is  not  shown.     But  although  judgments  rendered  in  such  cases 

may  be  reversed,  they  are  not  absolutely  nullities,  which  can  be 

wholly  disregarded,  but  are  conclusive  as  between  parties  and 

privities.      Turner  vs.  Bank  of  N.  America,  4  Dal.  S  ;   1  Cond. 

205.     Kemp's  Lessee  vs.  Kennedy  et  ah.,  5  Cra.  173  ;  2  Cond. 

223.     SJallern's  E.recutors  vs.  May's  Executors,  G  Cra,  267  ;  2 

Cond.  3GG.     McCormkk  vs.  SulVnant,  10  ^Vhca.  192 ;  6  Cond. 

71.     Kennedy  vs.  Georgia  State  Bank,  8  How.  Gil. 

Their  jurisdiction  depends  exclusively  on  the  constitution 

and  laws  of  the  United  Stales.     Licingston  vs.  Jejferson,  1  INIar. 

Dec.  203. 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ART.  III.    such  inferior  courts  as  the  Congress  may,  from 
time  to  time,  ordain  and  establish. 


The  courts  of  ihe  United  States  arc  bound  to  take  judicial 
notice  of  the  laws  of  the  several  states,  in  the  same  manner  as 
the  laws  of  the  United  States.  The  jurisprudence  of  the  seve- 
ral states  is  in  no  just  sense  a  foreign  jurisprudence,  to  be 
proven,  like  the  laws  of  a  foreign  country.  Owings  vs.  Hull, 
9  Peters,  607. 

The  laws  of  the  respective  states  are  authenticated  by  the 
seal  of  the  state.  Act.  1790,  ch.  11.  No  other  formality  is 
required.  United  States  vs.  Almcdy,  1 1  Whea.  392,  6  Cond.  362. 
A  circuit  court,  though  an  inferior  court  in  the  language  of 
the  constitution,  is  not  so  in  the  language  of  the  common  law  ; 
nor  are  its  proceedings  subject  to  the  scrutiny  of  those  narrow 
rules,  which  the  caution  or  jealousy  of  tbe  courts  of  Westmin- 
ster, long  applied  to  courts  of  that  denomination ;  but  are 
entitled  to  as  liberal  intendments  or  presumptions  in  favor  of 
their  regularity,  as  those  of  any  supreme  court.  A  circuit 
court  is,  however,  a  court  of  a  Z«?MVe^2  jurisdiction,  and  the  fair 
presumption  is  (unlike  the  case  of  courts  of  general  jurisdic- 
tion) that  a  case  is  without  its  jurisdiction  until  the  contrary 
appears.  Turner  vs.  Bcmk  of  NortJi,  America,  4  Dall.  8 ; 
1  Cond.  205.  Kemp's  Lessee\s.  Kennedy,  5  Cra.  185;  2  Cond, 
223.     Livingston  vs.  Van  Ingen,  Paine  45. 

And  though  their  judgments  and  decrees  may  be  erroneous, 
they  are  not  absolutely  nullities.  McCorjnick  vs.  Sullivan,  10 
Whea.  192;  6  Cond.  71. 

Congress  has  constitutional  authority  to  establish,  from  time 
to  time,  such  tribunals,  inferior  to  the  supreme  court,  as  it  may 
think  proper;  and  to  transfer  a  cause  from  one  such  inferior 
tribunal  to  another.  Stuart  vs.  Laird,  1  Cra.  299;  1  Cond. 
316.     Smith  vs.  Jackson,  1  Paine,  453. 

But  the  jurisdiction  of  the  inferior  courts  can  only  be  exer- 
cised in  cases  in  which  it  is  conferred  by  an  act  of  congress. 
Ex  parte  Cahrera,  1  Wash.  231. 


CONSTITUTIONAL  PROVISIONS. 


The  judges,  (2)  both  of  the  supreme  and  infe-     ^^^'' 
rior  courts,  shall  hold  their  offices  during  good  f.'.'^lf.'f 
behavior;  and  i-hall,  at  stated  times,  receive  for  '^^{^^y^'J^ 
their  services,  a  compensation,  which  shall  not 
be  diminished  during  their  continuance  in  office. 


The  territorial  courts  are  not  constitutional  courts,  in  which 
the  judicial  power,  conferred  on  the  general  government  by 
the  constitution,  can  be  deposited.  They  are  legislative  courts, 
created  in  virtue  of  the  general  riglit  of  sovereignty  which 
exists  in  the  government,  or  in  virtue  of  that  clause  which 
enables  congress  to  make  all  needful  rules  and  regulations 
respecting  the  ten-itory  bel(mging  to  the  United  States.  Ame- 
rican Insurance  Co.  vs.  Canter,  Pet.  511. 

See  also'  3  Story's  Com.  Const.,  §  1573  -  1591. 

(2)  The  judges  of  the  inferior  courts,  spoken  of  in  the  con- 
stitution, do  not  include  the  judges  of  courts  appointed  in  the 
territories  of  the  United  States  under  the  authority  given  to 
congress,  to  remilate  the  territories  of  the  United  States. 
3  Stonfs  Com.  Const.,  §  1630.  Amer.  Ins.  Co.  vs.  Canter,  1 
Pet.  511,  540. 

For  the  interpretation  of  the  words,  good  hcliavior,  see 
judgment  of  Lord  Holt,  in  Harcourt  vs.  Fox,  1  Shower's  R. 
426,  500,  530 ;  S.  C.  Shower's  cases  in  Pari.  158. 

The  standard  of  good  behavior,  for  the  continuance  in  office 
of  the  judicial  magistracy,  is  certainly  one  of  the  most  valua- 
ble improvements  in  the  practice  of  government.  *  *  *  * 
Nothing  can  contribute  so  much  to  its  Krmness  and  indepen- 
dence as  ^jf/-/«a«raf_y  m  o^/^r.  *  *  *  *  ^YnJ  next  1(1  y;(r- 
viancncy  in  office,  nothing  can  contribute  more  to  the  indepen- 
dency of  the  judges,  than  o.  Jixcd  i>rovision  for  their  support. 
Federalist. 

This  independency  extends  to  judges  in  courts  inferior,  as 
well  as  the  supreme ;  and  reaches  equally  their  salaries  and 
their  commissions.     They  stand  on  the  sure  basis  of  the  con- 


JURISDICTION  OP  THE  FEDERAL  COURTS. 


ART.  III.  Art.  III.  Sec.  2. 


Judicial 
power  ex- 
tends to 
tases  nu- 


The  judicial  power  (1)  shall  extend  to  all  cases 
in  law  and  equity,  arising  under  this  constitution, 
6^tkiuion     ^^^  ^^'^^'s  of  the  United  States,  and  treaties  made, 

niid  to  am- 

^assadors,     '      ~  ' 

stitution  :  tlic  judicial  department  is  independent  of  the  de- 
partment of  tLe  legislature.  No  act  of  congress  can  shake 
their  commissions,  or  reduce  their  salaries.  It  is  not  lawful 
for  the  president  of  the  United  States  to  remove  them  on  the 
address  of  the  two  houses  of  congress.  They  may  he  remov- 
ed, however,  as  they  ought  to  be,  on  conviction  of  high  crimes 
and  misdemeanors.  Justice  Wilson,  quoted  in  3  Ston/s  Com. 
§  1626. 

By  the  constitution,  all  criminal  and  civil  jurisdiction  must 
be  exclusively  confided  to  judges  holding  their  office  during 
good  behavior  ;  and  ihougli  congress  may,  from  time  to  time, 
distribute  the  jurisdiction  among  such  inferior  courts,  as  it  may 
create  from  time  to  time,  and  withdraw  it  at  their  pleasure,  it 
is  not  competent  for  them  to  confer  it  upon  temporary  judges, 
or  to  confide  it  by  special  commission.     3  Story^s  Com.  §  1621. 

See  also  3  Slonfs  Coin.  Const.  §§  1594  to  1631 ;  1  Tucker's 
Black.  App.  354,  356  to  360 ;  Ibid.  App.  22  to  25  ;  1  KcnVs 
Com.  Sec.  14. 

(1)  The  third  article  of  the  constitution  enables  the  judicial 
department  to  receive  jurisdiction  to  the  full  extent  of  the 
constitution,  laws  and  treaties  of  the  United  States,  when 
any  question  respecting  them  shall  assume  such  a  form  that 
the  judicial  power  is  capable  of  acting  npon  it.  That  power 
is  capable  of  acting  only  when  the  subject  is  submitted  to  it 
by  a  party  who  asserts  his  rights  in  the  form  prescribed  by 
law.  It  then  becomes  a  case.  Oshorn  vs.  Banh  of  the  United 
States,  9  Whea.  738  ;  5  Cond.  741. 

Jurisdiction  is  given  to  the  courts  of  the  Union  in  two 
classes  of  cases.  In  the  first  their  jurisdiction  dejiends  on  the 
character  of  tlie  cause,  whoever  may  be  the  parties.     This  class 


CONSTITUTIONAL  PROVISIONS. 


or  which  shall  be  made,  under  their  authority ; 
to  all  cases  aflecting  ambassadors,  other  public 


SKC. 


comprehends  "  all  cases  in  law  and  equity  arising  under  this 
constitution,  the  laws  of  the  United  States,  and  treaties  made, 
or  which  shall  be' made,  under  their  authority."  This  clause 
extends  the  jurisdiction  to  all  the  cases  described,  without 
making  in  its  terms  any  exception  whatever,  and  without  any 
regard  to  the  condition  of  the  party.  In  the  second  class  the 
jurisdiction  depends  entirely  on  the  cliaracter  of  the  parties. 
In  this  are  comprehended  "  controversies  between  two  or  more 
states,  between  citizens  of  the  same  state  claiming  lands  under 
grants  from  different  states,  and  between  a  state  and  citizens 

O 

thereof  and  foreign  states,  citizens  or  subjects."  If  these  be  the 
parties,  it  is  entirely  unimportant  what  may  be  the  subject  of 
controversy. 

In  one  description  of  cases,  the  jurisdiction  of  the  court  is 
founded  entirely  on  the  character  of  the  pai'ties ;  and  the  nature 
of  the  controversy  is  not  contemplated  by  the  constitution. 
The  character  of  the  parties  is  every  thing,  the  nature  of  the 
case  nothing.  In  the  other  description  of  cases,  the  jurisdic- 
tion is  founded  entirely  on  the  character  of  the  case,  and  the 
parlies  are  not  contemplated  by  the  constitution.  In  these  the 
nature  of  the  case  is  every  thing,  the  character  of  the  parties 
nothing:  Opinion  of  Marshal,  Cohens  vs.  Virginia,  6  ^\^lea. 
264;  5  Cond.  90,  100,  108. '^ 

In  an  action  of  ejectment  between  two  citizens  of  Maryland, 
for  a  tract  of  land  in  that  state,  the  defendant  set  up  an  out- 
standing  title  in  a  British  subject,  contending  it  was  protected 
by  the  treaty  :  the  state  court  decided  against  the  title  so  set 
up:  held  it  was  not  a  case  in  which  a  writ  of  error  lay  to  the 
supreme  court  —  it  is  not  "a  case  arising  under  a  treaty.'' 
Oirings  vs.  Norwood's  Lessee,  5  Cra.  344  ;  2  Cond.  275. 

See  also,  Sinith  vs.  Maryland,  6  Cra.  2SG ;  2  Cond.  377, 
City  of  New-Orleans  vs.  De  Armas,  9  Pet.  224.  Wallace  vs. 
Parher,  6  Pet.  GSO.      Worcr<^frr  vs.  S/nfc  of  Virginia,  G  Pet, 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ART.  III. 

To  cases 
of  Admi- 
ralty ;  to 
cases 


ministers  and  consuls ;  to  (2)  all  cases  of  admiral- 
ty and  maritime  jurisdiction ;  to  controversies  to 

515.  Bt/nic\s.  State  of  Missouri,  8  Pet.  iO.  Crowellxs.Ran- 
dell,  10  Pet.  368.  McBride  vs.  Hoey,  11  Pet.  167.  Chateau 
vs.  Marguerite,  12  Peters,  107.  Ocean  Ins.  Com,  vs.  Pollys, 
13  Pet.  157. 

(2)  The  grant  of  admiralty  powers  in  the  constitution,  to 
the  courts  of  the  United  States,  was  not  intended  to  be  con- 
fined to  such  cases  as  belonged  to  the  admiralty  jurisdiction  in 
England,  at  the  time  of  the  adoption  of  that  instrument.  Such 
a  limitation  is  inconsistent  with  the  extent  of  admiralty  juris- 
diction exercised  by  the  colonies,  with  a  just  interpretation  of 
the  constitution,  and  with  its  contemporary  construction.  Wa- 
ring vs.  Clark,  5  Howard,  441,  Justices  Woodbury,  Daniel 
and  Grier  dissenting. 

Proceedings  in  admiralty  arc  to  be  according  to  the  modi- 
fied admiralty  practice  of  our  own  country,  engrafted  upon 
the  English  practice ;  and  it  is  not  a  sufficient  reason  for  re- 
jecting a  particular  process,  which  has  been  used  in  the  admi- 
ralty courts  of  this  country,  that  it  has  fallen  into  disuse  in 
England.     Manro  vs.  Almeida,  10  Whea.  473  ;  6  Cond.  190. 

The  principles  of  the  common  law  are  inapplicable  to  pro- 
cess and  pleadings  in  courts  of  admiralty.  Clarice  vs.  New 
Jersey  Steam  Nav.  Co.,  1  Story  531.  Ehvellvs.  Martin,  Ware, 
53.     Brown  vs.  Lull,  2  Sum.  443. 

See  also  bearing  upon  this  same  point,  Jenlcs  vs.  Lewis,  Ware 
51.  Elliso7i  vs.  Ship  Bellona,  Bee,  106.  Brig  Sarah  Ann, 
2  Sura.  206.  Sc/ir.  Hoppet  vs.  United  States,  7  Cra.  389 ;  2 
Cond.  542.  Brig  Caroline  vs.  United  States,  7  Cra.  496 ;  2 
Cond.  584.  Schr.  Anne  vs.  United  States,  7  Cra.  570  ;  2  Cond. 
611.  The  Samuel,  1  Whea.  9 ;  3  Cond.  446.  The  Merino, 
9  Whea.  391 ;  5  Cond.  623.  The  Palmyra,  12  Whea.  1 ;  6 
Cond.  397. 

Admiralty  jurisdiction  may  be  vested  in  courts  created  by  a 
territorial  legislature,  as  such  courts  are  not  courts  within  the 


CONSTITUTIONAL  PROVISIONS. 


which  the  (3)  United  States  shall  be  a  party;  sec 2. 
to  controversies  (4)  between  two  or  more  states,  where  u. 
betAveen  a  state  and  citizens  of  another  state,  pany";!!!! 

where  u 

— — ~    state  id  a 

meaning  of  the  constitution.     Amer.  Ins.  Co.  vs.  Canter,  1  Pet.   P^^ty- 

511. 

(3)  The  word  "  controversies  "  has  been  held  to  refer  only 
to  such  suits  as  are  of  a  civil  nature:  while  "cases"  includes 
all  suits,  criminal  as  well  as  civil.  1  Tuck.  Black.  App.  420, 
421.  Chishohn  vs.  Georgia,  2  Dall.  419  ;  2  Cond.  App.  638, 
674.     Opinions  of  Iredell  and  Jay. 

It  is  observable,  that  the  language  used  does  not  confer  upon 
any  court  cognizance  of  all  controversies,  to  which  the  United 
States  shall  be  a  party,  so  as  to  justify  a  suit  to  be  brought 
against  the  United  States  without  the  consent  of  congress.  It 
is  a  known  maxim,  justified  by  the  general  sense  and  practice 
of  mankinil,  and  recognized  by  the  law  of  nations,  that  it  is 
inherent  in  the  nature  of  sovereignty  not  to  be  amenable  to 
llic  suit  of  any  private  person,  without  its  own  consent.  This 
exemption  is  an'  attribute  of  sovereignty,  belonging  to  every 
state  in  the  Union  ;  and  was  designedly  retained  by  the  national 
government.     3  Story's  Com.  §  1669. 

See  ante,  page  6,  note  (1)  to  Section  2. 

See  also,  3  Story's  Com.  §§  1668  to  1673.  Serg't  Con.  Law. 
Intro.  15  to  18.  The  Federalist,  No.  81.  CJiisJiohn  vs.  Georgia, 
2  Ball.  419,  478;  2  Cond.  635,  674.  1  Black.  Com.  241  to 
243.     CoJiens  vs.  Virginia,  6  Whea.  380  ;  Ibid.  411,  412. 

(4)  A  citizen  of  the  District  of  Columbia  is  not  a  citizen  of 
a  state  in  the  sense  of  the  constitution,  and  entitled  to  sue  as 
such  in  the  courts  of  the  United  States.  Hejphurn  vs.  EUzey, 
2  Cra.  448  ;   1  Cond.  444. 

For  many  years  it  was  held  that  a  corporation  aggregate  was 
not  a  citizen,  and  could  not  litigate  in  the  courts  of  the  United 
States,  unless  in  consequence  of  the  citizenship  of  the  indivi- 
duals who  compose  it,  which  character  must  be  averred  on  the 
record.     Hope  Ins.  Co.  vs.  Boardman,  5  Cra.  57  ;  2  Cond.  189. 


10  JURISDICTION  OF  THE  FEDERAL  COURTS 

ART  III.    between  citizens  of  different  states,  between  (5) 

To  cases 

Ijetwceii 

citizens        Bank    United   States  ys.  Deveaux,    5  Cra.  Gl ;    2  Cond,  189, 

of  samo        j,^^j.  ^j  Yicksbu7-g  vs.  Slocomh,  14  Peters,  GO. 

But  these  cases  were  reviewed  by  the  court  in  the  latei'  case 
of  Louisville  Railroad  Co.  vs.  Letson,  when  after  full  argument 
and  mature  deliberation  it  was  held,  that  they  had  been  carried 
too  far,  and  that  a  corporation  created  by  a  state  to  perform 
its  functions  under  the  authority  of  that  state,  and  suable  there 
only,  though  it  may  have  membei's  out  of  the  state,  was  a  per- 
son, thou"-h  an  artificial  one,  inhabiting  and  belonging  to  that 
state,  and  therefore  entitled,  for  the  purpose  of  suing  and  being 
sued,  to  be  deemed  a  citizen  of  that  state.  2  Howard,  497, 
555. 

See  also  ante,  page  6,  note  (1)  to  Section  2. 
(5)  The  courts  of  the  United  States  have  jurisdiction  in  a 
case  between  citizens  of  the  same  state,  if  the  plaintiffs  are 
only  nominal  parties,  suing  officially  for  the  use  of  an  alien. 
Brown  vs.  Strode,  5  Cra.  303  ;  2  Cond.  2G5.  CJiappedelaine 
vs.  Dichenaux,  4  Cra.  306  ;  2  Cond.  116.  Childress  ys.  Emory. 
8  Whea.  642  ;  5  Cond.  547. 

The  Indian  tribes  are  not Jhreign  states  in  the  sense  of  the 
constitution.  They  may  more  correctly,  perhaps,  be  denomi- 
nated domestic  dependent  nations.  They  cannot,  therefore, 
maintain  an  action  in  the  courts  of  the  United  States.  The 
Chcrbhee  Nation  vs.  State  of  Georgia,  5  Pet.  1,  Marshall,  John- 
son and  Baldwin  agreeing :  Thompson  and  Story  dissenting. 

Under  this  clause  the  court  has  jurisdiction,  where  one  party 
claims  land  vmder  a  grant  from  the  state  of  New-Hampshire, 
and  the  other  under  a  grant  from  the  state  of  Vermont,  al- 
though at  the  time  of  the  first  grant  Vermont  was  a  part  of 
New-Hampshire.  Town  of  Pawlet  vs.  Clark,  9  Cra.  292 ;  3 
Cond.  408. 

And  the  court  has  jurisdiction  to  ascertain  the  boundaries 
between  two  states.  Although  the  constitution  does  not  in 
terms  extend  the  judicial  power  to  all  controversies  between 


CONSTITUTIONAL  PROVISIONS.  11 


citizens  of  the  same  state  claiming  lands  under     sec  ^ 

. — state 

claiming 
the  States;  yet  it  in  terms  exclutles  none,  whatever  may  he    laii<lslr<.ni 

their  nature  or  suhject.     Rhode  Island  vs.  Massachusetts,  12    ^^J^^.^ 

I'et.  G57.     Fowler  xs.  Miller,  3  Dalh  411  ;   1  Conch  189. 

See  also  ante,  page  6,  note  (1)  to  Section  2. 

In  reference  to  the  extent  of  the  jiulicial  power,  Jay,  Chief 
Justice,  speaks  as  follows  :  The  judicial  power  of  the  United 
Slates,  as  established  in  the  constitution,  extends  to  ten  descrip- 
tions of  cases  :   1st.  To  "  all  cases  arising  under  this  constitu- 
tion ;"  because  the  meaning,  construction  and  operation  of  a 
compact  ought  always  to  be  ascertained  by  all  the  parties,  not 
by  authority   derived  from  only  one  of  them.    2d.  To   "  all 
cases  arising  under  the  laws  of  the  United  States  ;"  because 
as  such  laws,  constitutionally  made,   are  obligatory  on  each 
state,  the  measure  of  obligation  and  obedience  ought  not  to  be 
<lecided  and  fixed  by  the  party  from  whom  they  are  due,  but 
bv  a  tribunal  deriving  authority  from  both  the  parties.    3d.  To 
■='  all  cases  arising  under  treaties  made  by  their   authority  ;" 
because  as  treaties  are  compacts  made  by,  and  obligatory  on  the 
whole  nation,  their  operation  ought  not  to  be  affected  or  regu- 
lated by  the  local  laws  or  courts  of  a  part  of  the  nation.     4lh. 
To  "  all  cases  affecting  ambassadors,  or  other  public  ministers 
and  consuls  ;"  because  as  these  are  officers  of  foreign  nations, 
whom  this  nation  are  bound  to  protect  and  treat  according  to 
ihe  law  of  nations,  cases  affecting  them  ought  only  to  be  cog- 
nizable by  national  authority.     5th.  To  "  all  cases  of  admiralty 
and  maritime  jurisdiction  ;"  because,  as  the  seas  arc  the  joint 
property  of  all  nations    whose  rights  and  privileges  relative 
thereto,  are  regulated  by  the  law  of  nations  and  treaties,  such 
cases  necessarily    belong   to  national  jurisdiction.      6th.    To 
♦'  controversies  in  which  the  United  States  shall  be  a  party;" 
l)ecause  in  cases  in  which  the  whole  people  are  interested,  it 
will  not  be  equal  or  wise  to  let  any  one  state  decide  and  mea- 
■  ,>^ure  out  the  justice  due  to  others.     7th.     To  "  controversies 
between  two  or  more  states;"  because  domestic  tranquillity 


12  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ART  III.     grants  of  difTcrent  states,  and  between  a  state,  or 
~ '     the  citizens  thereof,  and  foreign  states,  citizens  or 
subjects. 
Sup. court:       In  nil  cases  (6)  affecting  ambassadors,  other 

requires  that  the  contentions  of  states  should  be  peaceably  ter- 
minated by  a  common  judicatory  ;  and  because  in  a  free  coun- 
try, justice  ought  not  to  depend  on  the  will  of  either  of  the 
litigants.  8th.  To  "  controversies  between  a  state  and  citizens 
of  another  state  ;"  because  in  case  a  state,  (that  is,  all  the 
citizens  of  it,)  has  demands  against  some  citizens  of  another 
state,  it  is  better  that  she  should  prosecute  their  demands  in  a 
national  court,  than  in  the  court  of  a  state,  to  which  those 
citizens  belong ;  the  danger  of  irritations  and  criminations 
arising  from  apprehensions  and  suspicions  of  partiality  being 
thereby  obviated  ;  because,  in  cases  where  some  citizens  of 
one  state  have  demands  against  all  the  citizens  of  another 
stale,  the  cause  of  liberty  and  the  rights  of  men  forbid  that 
the  latter  should  be  the  sole  judges  of  the  justice  due  to  the 
former ;  and  true  republican  government  requires  that  free 
and  equal  citizens  should  have  free  and  equal  justice.  9th.  To 
"  controversies  between  citizens  of  the  same  state  claiming 
lands  under  grants  of  different  states ;"  because,  as  the  rights 
of  the  two  states  to  grant  the  lands  are  drawn  in  question, 
neither  of  the  two  slates  ought  to  decide  the  controversy. 
10th.  To  "  controversies  between  a  state  or  citizens  thereof, 
and  foreign  states,  citizens  or  subjects  ;"  because  as  every 
nation  is  respon.sible  for  the  conduct  of  its  citizens  toward.! 
other  nations,  all  questions  touching  the  justice  due  to  foreign 
nations  or  people,  ought  to  be  ascertained  by,  and  depend  on, 
national  authority.  Chis7iolm  vs.  State  of  Georgia,  2  Dall. 
475  ;   1  Cond.  6,  S.  C.  App. ;  2  Cond.  635,  G71. 

See  also  "Supreme  Court,"  note  to  Original  Jurisdiction, 
postea. 

(6)  But  congress  cannot  assign  to  the  supreme  court  origi- 
nal jurisdiction  in  any  other  cases  than  those  specified  in  the 


CONSTITUTIONAL  PROVISIONS.  13 

public  ministers  and  consuls,  and  those  in  which     sec  2. 
a  state  shall  be  a  party,  the  siiprenne  court  shall  ori-mai 

ana 

constitution.  The  dislribiition  of  original  and  apjit-llatc  juris- 
diction in  lliat  insliunicnt  cannot  be  altered  or  distributed,  nor 
the  judicial  power  exercised  in  its  appellate  form  in  those 
rases  in  which  original  jurisdiction  has  been  conferred.  Mar- 
hiiry  vs.  Madison,  1  Cra.  137  ;  1  Cond.  267,  281.  Cohens  vs. 
Virginia,  G  Whea.  264;  5  Cond.  90,  112.  Osborn  vs.  Bank 
of  United  Slates,  9  A¥liea.  738;  5  Cond.  741,  748. 

The  supreme  court  has  appellate  jurisdiction  both  as  to  law 
and  fact,  in  all  cases  mentioned  in  the  third  article  of  the 
constitution,  other  than  those  in  which  their  jurisdiction  is  ex- 
clusive or  original,  with  sucli  exceptions,  and  under  such  re- 
gulations as  Congress  shall  make.  Wilson  vs.  Mason,  1  Cra. 
45  ;   1  Cond.  242,  245. 

Its  appellate  power  extends  to  every  case  not  excepted  by 
congress.  Such  power  is  not  given  by  the  judicial  act,  but 
by  the  constitution ;  though  they  are  limited  and  regulated  by 
the  judicial  act,  and  by  such  other  acts  as  have  been  passed  on 
the  subject.  Durosscau  vs.  The  United  States,  6  Cra.  307  ; 
.2  Cond.  380,  382. 

Its  original  jurisdiction  is  founded  on  the  character  of  the 
parties  to  a  suit  —  its  appellate  jurisdiction  on  the  character  of 
the  case.     Cohens  vs.  Virginia,  6  AVliea.  264  ;  5  Cond.  90. 

The  appellate  jurisdiction  will  only  be  exercised  in  cases 
where  it  is  given  by  statute.  The  constitution  and  law  must 
concur  in  f»rder  to  vest  it.  United  States  \s.  Moore,  3  Cra. 
159;  1  Cond.  4S0.  Durosseau  vs.  United  States,  0  Cra.  307; 
2  Cond.  3S0.  Wilson  vs.  Mason,  1  Cra.  91.  Wiscart  vs. 
Daiivloj,  3  Dall.  321  ;   1  Cond.  144. 

Where  the  words  of  the  constitution  confer  only  appellate 
jurisdiction  on  the  supreme  court,  original  jurisdiction  is  most 
clearly  not  given.  But  where  the  words  admit  of  appellate 
jurisdiction,  the  power  to  take  cognizance  of  the  suit  originally 
docs  not  necessarily  negative  the  power  to  decide  upon  it,  on 


14  JURISDICTION  OF  THE  FEDERAL  COURTS. 

AKT  111.     have  original  jurisdiction.    In  all  other  cases  be- 

ajMieiiate    fofc   mentioned,  the   supreme  court  shall  have 

iiou!"^      op/jcllate  jurisdiction,   both  as  to   law  and  fact, 

with  such  exceptions,  and  under  such  regulations 

as  the  congress  shall  make. 

Climes,  The  trial  (7)  of  all  crimes,  except  in  cases  of 

an  appeal,  if  it  may  originate  in  a  different  court.  Cohens  vs. 
State  of  Virginia,  6  Whea.  2G4 ;  5  Cond.  90. 

See  also  "  Supreme  Court,"  note  to  "  Original  Jurisdiction," 
postea. 

(7)  The  clause  of  the  act  1790,  ch.  3G,  §  8,  providing  that 
"  the  trial  of  crimes  committed  on  the  high  seas,  or  in  any- 
place out  of  the  jurisdiction  of  any  particular  state,  shall  be 
in  the  district  where  the  offender  is  apprehended,  or  into  w^hich 
he  may  be  first  brought,"  applies  only  to  ofiences  committed 
on  the  high  seas,  or  in  some  river,  haven,  basin,  or  bay,  not 
within  the  jurisdiction  of  a  particular  state,  and  does  not  apply 
to  the  territories  of  the  United  States,  where  regular  courts 
for  the  trial  of  offences  are  provided  by  congress.  Ex  parte 
Bollman  and  Swartwout,  7  Cra.  75 ;  2  Cond.  33. 

Where  two  or  more  persons  are  jointly  charged  in  the  same 
indictment,  with  a  capital  offence,  such  persons  have  not  a 
right,  by  the  laws  of  the  country,  to  be  tried  severally,  sepa- 
rately and  apart,  the  counsel  for  the  United  States  objecting 
thereto.  Such  separate  trial  is  a  matter  to  be  allowed  in  the 
discretion  of  the  court  before  whom  the  indictment  is  tried. 
United  States  vs.  Marchant,  12  Wliea.  480  ;  6  Cond.  .'388,  citing 
and  approving  Rex  vs.  NrMe,  9  Hargr.  St.  Trials ;  S.  C.  15 
Howell's  St.  Trials,  731. 

A  pardon  must  be  brought  before  the  notice  of  the  court, 
by  plea,  motion  or  otherwise,  or  the  judges  cannot  extend  to 
the  defendant  its  protection.  A  pardon  is  a  deed,  to  the  vali- 
dity of  which  delivery  is  essential ;  and  delivery  is  not  com- 
plete without  acceptance.  It  is  considered  as  ii  public  law. 
United  Slates  vs.  Wilson,  7  Pet.  150. 


CONSTITUTIONAL  PROVISIONS.  15 

impeachment,  shall  be  by  jury ;  and  such  trial     sec.  2. 
sliall  be  held  in  the  state  where  such  crime  shall  trial  of, 
have  been  committed ;  but  when  not  committed  ktcd."°" 
witliin  any  state,  the  trial  shall  be  at  such  place 
or  places   as   the  congress  may,  by  law,  have 
directed. 


16 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


AMENDMENTS  TO  THE  CONSTITUTION. (I) 


Art.  V. 


Indict- 
ment, 
when  ne- 
cessary; 
no  one  to 


No  person  (2)  shall  be  held  to  answer  for  a 
capital  or  otherwise  infamous  crime,  unless  on  a 


(1)  An  amendment  of  the  constitution  is  even  higher  autho- 
rity than  the  constitution  itself,  for  it  has  the  effect  of  control- 
ling and  repealing  its  express  provisions  authorizing  a  power 
to  be  exercised,  by  a  declaration  that  it  shall  not  be  construed 
to  give  such  power.  BingJiam  vs.  Cahot,  3  Dall.  382  ;  cited 
by  Baldwin  J.  in  Johnson  vs.  Tomphins,  Baldwin,  571,  598. 

It  annuls  all  jurisdiction  which  the  constitution  grants,  whe- 
ther past,  present  or  future,  which  is  contrary  to  the  amend- 
ment; it  arrests  the  action  of  even  the  supreme  court,  in 
cases  depending  before  it  prior  to  the  adoption  of  the  amend- 
ment, and  operates  as  an  absolute  prohibition  to  the  exercise 
of  any  other  jurisdiction  than  dismissing  the  suit.  B'mgliam 
vs.  Cahot,  3  Dall.  382,  383 ;  6  Whea.  405,  409  ;  9  Whea.  868, 
cited  in  Bains  vs.  Schr.  James  and  Catharine,  Baldwin,  544, 
561. 

(2)  The  term  "  jeopardy  ^^  spoken  of  in  the  fifth  amendment, 
means  the  acquittal  or  conviction  of  the  prisoner,  and  the  judg- 
ment of  the  court  thereon.  United  States  vs.  Haskell  and 
Francois,  4  Wash.  402,  410. 

Insanity  of  one  of  the  jurors  is  good  cause  for  discharging 


CONSTITUTIONAL  PROVISIONS.  V7 


presentment  or  indictment  of  a  grand  jury,  except     art^v 
in  cases  arising  in  the  land  or  naval  forces,  or  in  be  twice 
the  militia,  when  in  actual  service,  m  time  oi  jeopardy, 
war  or  public  danger;  nor  shall  any  person  be  witness 

...        against 

subject  for  the  same  offence  to  be  twice  put  in  himself. 
jeopardy  of  life  or  limb  ;  nor  shall  be  compelled, 
in  any  criminal  case,  to  be  witness  against  him- 
self; nor  be  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use  without  just 
compensation. 

Art.  VI. 
In  all  criminal  prosecutions  the  accused  shall  Accused  to 

•     1  1  1  IT  '11  have  8pee~ 

enjoy  the  right  to  a  speedy  and  public  trial,  by  dy  trial,  to 
an  impartial  jury,  of  the  state  and  district  where-  fronted 

with, 

the  jury,  without  the  consent  of  the  prisoner  or  his  counsel. 
Ibid. 

The  (lischai'ge  of  a  jury  from  giving  a  verdict  in  a  capital 
case,  without  the  consent  of  the  prisoner,  the  jury  being  unable 
to  agree,  is  not  a  bar  to  a  subsequent  trial  for  the  same  offence. 
But  although  the  court  have  the  authority  so  to  discharge  a 
jury  from  giving  any  verdict,  the  power  ought  to  be  used  with 
great  caution,  under  urgent  circumstances  and  for  very  plain 
and  obvious  causes  ;  and  in  capital  cases  especially,  the  court 
should  be  very  careful  of  taking  from  the  prisoner  any  of  the 
chances  of  his  life.  Vnitcd  States  vs.  Perez,  9  Whea.  579  ; 
5  Cond.  689.  United  States  vs.  Haskell  and  Francois,  4  Wash. 
407. 

But  a  verdict  regularly  rendered  upon  a  sufficient  indict- 
ment, prevents  a  second  trial.     United  States  vs.  Gibert,  2  Sum. 

19. 

2 


]8  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ART.  VI.    in  the  crime  shall  have  been  committed,  which 

and  to       district  shall  have  been  previously  ascertained  by 

iiesre^auJ  law,  and  to  be  informed  of  the  nature  and  cause 

Bista^Jc^e'^of  of  tlic  accusatiou ;  to  be  confronted  with  the  wit- 

nesses  agamst  nim ;  to  nave  compulsory  process 

for  obtaining  witnesses  against  him  ;  and  to  have 

the  assistance  of  counsel  for  his  defence.(l) 


Art.  VII. 

jary  trial        In  suits  at  common  law,  (1)  where  the  value 
where  $20  iu  coutrovcrsy  shall  exceed  twenty  dollars,  the 

« at  issue;       .  n       '    ^  -i        •  ini  i  i 

right  01  trial  by  jury  shall  be  preserved;  and  no 


(1)  The  amendments  to  the  constitution,  by  which  the  right 
of  trial  by  jury  was  secured,  may,  in  a  just  sense,  be  well  con- 
strued to  embrace  all  suits,  which  are  not  of  equity  and  admi- 
ralty jurisdiction,  whatever  may  be  the  peculiar  form  which 
they  may  assume  to  settle  legal  rights.  Parsons  vs.  Bedford, 
3  Pet.  433,  447. 

(1)  The  seventh  amendment  to  the  constitution  excludes  tho 
jurisdiction  of  the  admiralty  over  contracts  regulated  by  the 
common  law ;  (such  as  contracts  for  materials,  labor  or  pro- 
visions, in  building,  equipping,  furnishing  or  provisioning  a 
ship  when  in  our  ports).  Suits  upon  such  contracts  are 
appropriately  "  suits  at  common  law,"  within  the  terms  of  tho 
amendment,  and  are  cognizable  only  in  courts  of  common  law. 
Bains  vs.  Schr.  James  and  Catharine,  Bald.  544,  566,  568. 

This  position  is,  however,  opposed  by  the  case  of  Davis  vs. 
A  New  Brig,  Gilpin,  471,  and  27ic  Jerusalem,  2  Gall.  347. 

The  term  "suits  at  common  law,"  in  the  seventh  amend- 
ment, means  the  same  as  "  cases  in  law,"  in  the  third  article  of 
the  constitution.     Baker  vs.  BiddJc,  Baldwin,  394,  405. 


CONSTITUTIONAL  PROVISIONS.  19 

fact  tried  by  a  jury  shall  be  otherwise  re-examiu-  art.  vil 
ed  in  any  court  of  the  United  States  than  accord-  rmding  of 
ins  to  the  rules  of  the  common  law.  rLvicwtd. 


Art.  VIII. 
Excessive  bail  (1)  shall  not  be  required,  nor  ex-  Bail  an.i 

-,  .  ,  I  I  I     fiiii-snot  fo 

cessive  lines  miposed ;    nor  cruel  and  unusual  be  excts- 
punishment  inflicted.  punish-*' 

111  cut  una- 
I EuaL 

The  right  of  trial  by  jury  forbids  a  nonsuit,  except  at  con- 
sent of  plaintiff.  Doc  vs.  Gnjmes,  1  Pet.  469,  Dc  Wolf  vs. 
Raband,  1  Pet.  476.     Crane  vs.  Blorris'  Lessee,  6  Pet.  598. 

By  the  adojition  of  this  amendment,  the  people  of  the  states 
and  Congress  have  declared,  that  the  right  of  jury  trial  shall 
depend  neither  on  legislative  or  judicial  discretion.  It  pre- 
serves the  right  of  jury  trial  against  any  infringement  of  any 
department  of  the  government;  and  the  16th  section  of  the 
judicial  act  of  1789  prohibits  all  courts  from  sustaining  a  suit 
in  equity,  wliere  the  remedy  is  complete  at  law.  Baher  vs. 
Biddle,  Baldwin,  394,  404.  See  also,  Parsons  vs.  Bvdjord,  3 
Pet.  446,  447. 

See,  also.  Powers  in  Common,  "  Equity  Jurisdiction,"  note 
(1),  and  "  Trials  of  Issues  of  Fact,"  and  notes. 

(1)  The  courts  of  the  United  States,  though  not  expressly 
invested  witli  such  power  by  statute,  have  necessarily,  from  the 
duties  assigned  to  them,  the  power  to  commit  persons  charged 
with  an  offence  against  the  United  States,  and  to  take  bail  in 
such  case.     United  States  vs.  Burr,  2  Robertson,  80. 

The  supreme  court  may  bail  a  person  committed  for  trial 
on  a  criminal  charge  by  a  district  judge.  United  States  vs. 
Hamilton,  3  Dall.  17. 

The  circumstances  of  a  case  must  be  very  strong,  which 
will,  at  any  time,  induce  a  court  to  admit  a  person  to  bail,  who 


20  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ART^xi.  Art.  XL 

er'liorio'       The  judicial  power  (1)  of  the  United  States  shall 
extend       J^(-^|^  j^q  coiisidcred  to  extend  to  any  suit  in  law  or 

stands  chai-ged  with  high  treason.     United  States  vs.  Stewart, 
2  Dall.  343. 

On  a  question  of  holding  to  bail,  the  court  will  not  travel 
into  the  merits  of  the  controversy,  where  the  cause  of  action  is 
apparent,  though  liable  to  controversy.  Parasset  vs.  Gautier, 
2  Dall.  330. 

The  humanity  of  the  law,  no  less  than  the  feelings  of  the 
court  favor  the  liberation  of  a  prisoner  on  bail,  who  is  pi'oved 
to  be  suffering  under  a  disease,  which  may  be  ultimately  dan- 
gerous from  his  being  kept  in  confinement.  It  is  not  necessary 
that  the  danger  should  be  immediate  or  certain  ;  if  confine- 
ment is  injurious  and  may  bo  fatal,  and  a  bill  of  indictment 
being  found,  the  court  will  not  go  into  an  examination  of  the 
evidence,  for  the  purpose  of  taking  bail.  United  States  vs. 
Jones,  3  Wash.  224. 

The  eighth  amendment,  which  declares  that  excessive  fines 
shall  not  be  imposed,  is  addressed  to  courts  of  the  United 
States  exercising  criminal  jurisdiction,  and  is  doubtless  manda- 
tory to,  and  a  limitation  upon  their  discretion.  But  the  supreme 
court  have  no  appellate  jurisdiction  to  revise  the  sentences  of 
inferior  courts  in  criminal  cases;  and  cannot,  even  if  the  ex- 
cess of  the  fine  was  apparent  on  the  record,  reverse  the  sen- 
tence.    Ex  parte  Watkins,  7  Pet.  5G8,  573,  574. 

See  also  generally  United  States  vs.  French,  1  Gall.  1.  Oli- 
ver vs.  Parish,  2  Wash.  462.  Bowerbank  vs.  Paine,  Ibid.  464. 
Post  vs.  Sarmiento,  Ibid.  189.  Craig  vs.  Brown,  Pet.  C.  C 
352.     Ilayton  vs.  Wilkinson,  1  Hall's  Am.  L.  Journal,  260. 

(1)  Before  the  adoption  of  the  11th  amendment  of  the 
constitution,  a  suit  might  be  brought  in  the  suj)reme  court 
ao-ainst  a  state,  b/"a  citizen  of  another  state.  Chisholm's  ExWs 
vs.  State  of  Georgia,  2  Dall.  419  ;   1  Cond.  6. 


CONSTITUTIONAL  PROVISIONS.  21 


equity  commenced  or  prosecuted  against  one  of  art^xl 
the  United  States  by  citizens  of  another  state,  or  t.,«MiiHi,y 
hy  citizens  or  subjects  of  any  foreign  state.  agHiu»t  a 


But  since  the  adoption  of  that  amendment,  there  cannot  be 
exercised  any  jurisdiction,  in  any  case  past  or  future,  in  which 
a  state  was  sued  by  the  citizens  of  another  stale,  or  by  citizens 
or  subjects  of  any  foreign  state.  IlolUngsworth  vs.  State  of 
Virginia,  3  Dall.  378 ;   1  Cond.  1G9. 

The  right  of  a  state  to  assert  as  a  plaintiff  any  interest  it 
may  have  in  a  subject,  which  forms  a  matter  of  controversy, 
is  not  affected  by  the  eleventh  amendment.  United  States  vs. 
Judge  Peters,  5  Cra.  115  ;  2  Cond.  202. 

See  also  Cohens  vs.  Virginia,  G  Whea.  2G4  ;  5  Cond.  90,  IIG. 

Jurisdiction  is  neither  given  nor  ousted  by  the  relative  situa- 
tion of  the  parties  in  interest,  but  by  the  relative  situation  of 
the  parlies  named  in  the  record;  consequently  the  eleventh 
amendment  to  the  constitution  is  limited  to  those  suits  in  which 
a  state  is  a  party  on  the  record.  Bank  United  States  vs.  Bank 
Georgia,  9  Whea.  904 ;  5  Cond.  794. 


JURISDICTION 


FEDERAL  COURTS  OF  THE  UNITED   STATED 


POWERS  IN  COMMON. 


JURISDICTION 


FEDERAL   COURTS. 


POWERS   IN    COMMON. 


TO    ISSUE    "WRITS    GENERALLY. 


All  of  the  courts  (1)  of  the  United  States  shall   ^^Tl!'"'- 
have  power  to  issue  writs  of  habeas  corpus,  scire  \°^^^lll^ 


as  corjnit. 


(1)  Under  the  clause  of  the  judiciary  act,  authorizing  courts 
to  issue  writs,  "  which  may  be  necessary  for  the  exercise  of 
their  respective  jurisdictions,"  the  courts  may  devise  j>roccss 
to  bring  any  person  before  them  for  any  offence  of  which  they 
have  jurisdiction.  United  States  vs.  Burr,  2  Robertson,  481. 
Dupon.  on  Juris.  App.  228. 

The  i)hrasc,  "agreeable  to  the  principles  and  usages  of  law," 
means  those  general  principles  and  those  general  usages  which 
are  to  be  found,  not  in  the  legislative  acts  of  any  particular 
state,  but  in  that  generally  recognized  and  long  established 
law  which  forms  the  substratum  of  the  laws  of  every  state. 
United  States  vs.  Burr,  2  Robertson,  481 ;  Dupon.  on  Juris. 
App.  229. 

Manda7)ius. 

On  a  mandamus  a  superior  court  will  never  direct  in  what 
manner  the  discretion  of  an  inferior  tribunal  shall  be  exercised ; 
but  they  will,   in   a  proper  case,  require  an  inferior  court  to 


26  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  1789.  facias,  and  all  other  writs  not  specially  provided 
scire  facias  foi  by  statutc,  wliicli  Hiay  be  necessary  for  the 

and  other 


writs. 


decide.  N.  York  Life  and  Fire  Ins.  Co.  vs.  Wilson,  8  Peters, 
291.  Same  vs.  Adams,  9  Peters,  571.  Bank  of  Columbia  vs. 
Sweeny,  2  Peters,  567.  See  also  Ex  2)arte  Whitncij,  13  Pet. 
404,  407-8. 

A  writ  of  mandamus  is  not  a  proper  process  to  correct  an 
erroneous  judgment  or  decree  rendered  in  an  inferior  court. 
Ex  parte  Hoijt,  13  Peters,  279,  290. 

The  United  States  courts  have  no  power  by  mandamus  to 
compel  a  ministerial  officer  of  the  United  Stales  to  perform  an 
act  enjoined  on  him  by  law.  Mclntyre  vs.  Wood,  7  Cra.  504 ; 
2  Cond.  588.  McCluny  vs.  Silliman,  2  Whea.  369 ;  4  Cond. 
162. 

Ministerial  officers  of  the  United  States  are  beyond  the 
reach  of  this  process,  except  in  the  District  of  Columbia,  where 
the  circuit  court  of  that  district,  in  its  peculiar  power,  have  the 
power  to  issue  this  writ  to  officers  of  the  United  States,  where 
an  act  to  be  done  is  expressly  enjoined  by  law.  Kendall  vs. 
The  United  States,  12  Pet.  524. 

Supreme  Court. — As  to  when  the  writ  of  mandamus  issues 
from  this  court,  see  title  "  Supreme  Court,"  "  Mandamus," 
postea. 

Circuit  Courts. — The  power  of  the  .circuit  courts  to  issue 
the  writ  of  mandamus,  is  confined  exclusively  to  those  cases  in 
which  it  may  be  necessary  to  the  exercise  of  their  jurisdiction. 
Mclntyre  vs.  Wood,  7  Cra.  504  ;  2  Cond.  588.  Smith  vs. 
Jackson,  Paine,  453. 

The  circuit  courts  have  no  power  to  issue  this  writ  after  the 
practice  of  the  King's  Bench.     Smith  vs.  Jackson,  Paine,  453. 

A  circuit  court  may  issue  this  writ  to  a  collector,  command- 
ing him  to  grant  a  clearance.  Gilchrist  vs.  Collector  of  Charles- 
ton, 1  Hall's  Adm.  Law  Journal,  429. 

A  circuit  court  may  issue  a  mandamus  to  a  state  court  which 
refuses  to  transfer  a  cause  under  the  act  of  Congress.     Sprag- 


POWERS  IN  COMMON.  27 


exercise   of   tlieir  respective    jurisdictions,   and   act^tbo. 
agreeable  to  the  principles  and  usages  of  law. 
Act.  1789,  ch.  20,  §  14. 


gins  vs.  County  Court  of  Hump7ireys,  1  Cooke,  IGO,  cited  in 
note  1  ConJ.  21  f  Brovm  vs.  Cay>m,  4  Hen.  &  Munf.  Va.  173. 

Where  a  district  court  refuses  to  give  judgment,  a  manda- 
mus lies  to  compel  it.  Livingston  vs.  Dorgenois,  7  Cra.  577; 
2  Cond.  618. 

But  a  mandamus  will  not  lie  to  a  district  court  to  compel  it 
to  expunge  amendments  imj^operly  made  in  the  record  return- 
ed to  the  circuit  court  on  a  writ  of  error.  S?nitk  vs.  Jackson, 
Paine,  620. 

District  Courts. — The  power  of  the  district  courts  to  issue 
the  writ  of  mandamus  does  not  extend  beyond  those  cases  in 
which  it  is  necessary  for  the  exercise  of  their  acknowledged 
jurisdiction. 

Executions. 

The  fourteenth  section  of  the  judiciary  act  gives  to  the  courts 
of  the  Union,  respectively,  the  power  to  issue  executions  on 
their  judgments.  But  this  section  only  provides  for  issuing 
the  WTit,  and  prescribes  no  rule  for  the  conduct  of  the  officer 
while  obeying  its  mandate.  Nor  has  the  34th  section  any  ap- 
plication to  the  practice  of  the  court,  or  to  the  conduct  of  its 
officer,  in  the  service  of  such  a  writ.  Waijman  vs.  Sout/iard, 
10  Whea.  1 ;  6  Cond.  1,  5,  6.  Bank  of  United  States  vs.  Hal- 
stead,  10  Whea.  51  ;  6  Cond.  22,  25. 

The  process  acts  of  1792  and  1828  regulate  the  practice 
respecting  executions  issuing  from  the  coui'ts  of  the  United 
States,  and  adopt  the  practice  of  the  supreme  courts  of 
the  states,  as  the  rule  for  governing  proceedings  on  such 
executions,  subject  to  such  alterations  as  the  courts  of  the 
United  States  may  make,  but  not  subject  to  the  alterations 
which  have  since  taken  place  in  the  slate  law  and  practice. 
Wayman  vs.  Southard,  10  Whea.  1 ;  6  Cond.  1,  9  et  scq. 


28  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  1789.  TO    ISSUE    WRITS    OF    HABEAS    CORPUS. 

Habeas  Eitlicr  (1)  of  the  jiistices  of  the  supreme  court, 

corpus, 

wheumay  as  wcU  Qs  judgcs  oi' the  district  courts,  shall  have 

issue. 

(1)  No  law  of  the  United  States  prescribes  the  cases  in  which 
this  great  writ  shall  be  issued,  nor  the  power  ^f  the  court  over 
the  paity  brought  up  by  it.  The  term  is  used  in  the  constitution 
as  one  which  was  well  understood  ;  and  the  judicial  act  autho- 
rizes this  court  and  all  the  courts  of  the  United  States,  and  the 
judges  thereof,  to  issue  the  writ  "  for  the  purpose  of  enquiring 
into  the  cause  of  commitment."     Ex  parte  Watkins,  3  Pet.  202. 

This  writ  is  in  the  nature  of  a  writ  of  error.     Ibid. 

The  authority  to  issue  writs  of  habeas  corpus,  under  the  14th 
section  of  the  act  of  1790,  (1789  ?)  is  restricted  to  cases  where 
the  prisoner  is  confined  under  or  by  color  of  the  authority  of 
the  United  States ;  or  is  committed  for  trial  before  some  court 
of  the  United  States  ;  or  is  necessary  to  testify.  Exjmrte  Ca- 
brera, 1  Wash.  232. 

The  power  to  issue  writs  of  habeas  corpus,  "  for  the  purpose 
of  enquiring  into  the  cause  of  commitment,"  applies  as  well 
to  cases  of  commitment  under  civil  as  those  of  criminal  pro- 
cess. Ex  parte  Randolph,  2  Mar.  Dec.  447,  475,  477,  487, 
overruling  Ex  parte  Wilson,  6  Cra.  52  ;  2  Cond.  300.  See 
also  Ex  parte  Bollman,  4  Cra.  44 ;   2  Cond.  33. 

Nature  and  powers  of  the  wiit  of  habeas  corpus.  Ex  parte 
Wathins,  3  Pet.  193,  202. 

Supreme  Court. — As  the  jurisdiction  of  the  supreme  court 
is  appellate,  it  must  be  shown  that  the  court  has  power  to 
award  a  habeas  corpus,  before  one  will  be  granted.  Ex  parte 
Milburn,  9  Pet.  704. 

Whether  the  supreme  court  may  issue  the  writ  of  habeas 
corpus,  in  any  case,  turns  upon  the  fact,  whether  it  is  the  exer- 
cise of  original  or  appellate  jurisdiction.  Ex  parte  Wathins, 
7  Peters,  5G8,  572. 

A  habeas  corpus  may  issue  from  this  court,  where  a  person 
is  imprisoned  under  the  warrant  or  order  of  any  other  court 


POWERS  IN  COMMON.  29 


power  to  grant  writs  of  habeas  corpus  for  the  pur-    act.  i789. 

of  the  United  States.  Ex  parte  Kearney,  7  Wliea.  38  ;  5  Cond. 
225.  Ex  iHirtc  Wat/cins,  7  Pot.  5G8 ;  but  not  where  tlie  per- 
son is  untler  confinement  under  the  process  of  a  state  court. 
United  States  \s.  French,  1  Gall.  1  \  1  Kent  Com.  412. 

The  writ  will  not  issue  in  the  case  of  a  party  imprisoned  for 
contempt.     Ex  parte  Kearney,  7  Whea.  38  ;  5  Cond.  225. 

See  also  Ex  parte  Burford,  3  Cra.  448;  1  Cond.  594.  Ex 
parte  HamilUm,  3  Dall.  17  ;  2  Cond.  54,  note.  Holmes  vs. 
Jennison,  14  Pet.  540.     Ex  parte  Watkins,  7  Peters  568. 

Circuit  Courts. — Where  the  principal  is  confined  in  jail, 
under  the  mesne  civil  process  of  a  state  court,  the  circuit  court 
has  no  authority  to  issue  a  habeas  corpus  for  the  purpose  of 
bringing  him  in  to  bo  surrendered  in  discharge  of  his  bail.  TJni' 
ted  States  vs.  French,  1  Gall.  2, 

Where  a  principal  is  committed  to  jail  according  to  the  local 
law  of  a  state,  by  his  special  bail,  given  under  the  12th  section 
of  the  judiciary  act  of  1789,  the  circuit  court  will  grant  a 
habeas  coqius  to  bring  such  party  into  court,  to  be  surrendered 
in  discharge  of  his  bail,  such  commitment  not  being  a  dis- 
charge.    Comstock  vs.  Scagreaves,  1  Story,  546. 

On  a  habeas  corpus,  the  court  cannot  look  behind  the  sen- 
tence of  the  court,  where  it  had  juiisdiction.  Johnson  vs. 
United  States,  3  McLean,  89. 

The  court  may  enquire,  on  a  habeas  corpus,  whether  a  capias 
was  rightfully  issued.     Nelson  vs.  Cutter,  3  McLean,  326. 

A  circuit  court  cannot  issue  a  writ  of  habeas  corpus  to  dis- 
charge a  secretary  of  legation  from  process  issued  under  the 
authority  of  a  state.     Ex  parte  Cahrera,  1  Wash.  232. 

See  also  Ex  parte  Smith,  3  McLean,  121.  United  States  vs. 
Green,  3  Mason,  482. 

District  Courts. — See  also  as  to  the  power  of  district 
courts  to  issue  habeas  corpus,  in  reflation  to  officers,  &:c.,  in  the 
army  being  arrested  for  debt.  Act.  1799,  ch.  48,  §  4,  and  act. 
1802,  ch.  9,  §  26.     Conk.  Trea.  Ed.  1842,  130,  7iotc  a. 


30       JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  17S9.   pose  of  an  enquiry  into  the  cause  of  commit- 
iiabeas      Dient.     Pfovided,  that  writs  of  habeas  corpus  shall 
wCnot    in  no  case  extend  to  prisoners  in  jail,  unless  where 
o  issue,     tijey  ai-e  in  custody  under  or  by  color  of  the  au- 
thority of  tlie  United  States,  or  are  committed 
for  trial  before  some  court  of  the  same,  or  are 
necessary  to  be   brought   into  court  to  testify. 
Act,  1789,  ch.  20,  §  14. 
ACT^i833.        ^  later  act  provides,  that  either  of  tlic  justices 
in  ail  cases  of  the  siiprcme  court,  or  a  judge  of  any  district 
7oal»lm.  court  of  tliG  United  States,  in  addition  to  the  au- 
der1aw")r  tliorlty   already   conferred    by   law,   shall   have 
of 'the'ih    power  to  grant  writs  of  habeas  corpus,  in  all  cases 
States.       ^^  ^  prisoner  or  prisoners,  in  jail  or  confinement, 
where  he  or  they  shall  be  committed  or  confined 
under,  or  by  any  authority  or  lav/,  for  any  act 
done  or  omitted  to  be  done,  in  pursuance  of  a 
law  of  the  United  States,  or  any  order,  process  or 
decree  of  any  judge  or  court  thereof,  any  thing 
in  any  act  of  Congress  to  the  contrary  notwith- 
standing.    Act,  1833,  ch.  57,  §  7. 
ACTvi&i-'.        And  by  a  still  later  act  it  is  provided,  that  either 
May  issue  ^f  ^jjg  iusticcs  of  tlic  suDrcmc  court  of  the  United 

when    a  •J  '■ 

person  is    gfatcs,  or  iudiTe  of  any  district  court  of  the  United 

connued  ^         o        ^  j 

for  an  act    gtatos,  lu  whicli  a  prisoucr  is  confined,  in  addition 

dune  or  ^ 

omitted      fQ  fPje  authority  already  conferred  by  law,  shall 

under   a  j  j  j 

foreigii       have  pov/er  to  ffrant  writs  of  habeas  corpus  in  all 

authoniy.  *  _  _  ... 

ca.ses  of  any  prisoner  or  prisoners  in  jail  or  con- 
finement, where  he,  she,  or  they,  being  subjects 
or  citizens  of  a  foreign  state,  and  domiciled  there- 
in, shall  be  committed  or  confined,  or  in  custody, 


POWERS  IN  COMMON.  31 


under  or  by  any  authority  or  law,  or  process  act,  1812. 
founded  thereon,  of  the  United  States,  or  of  any 
one  of  them,  for  or  on  account  of  any  act  done 
or  omitted  under  any  alleged  right,  title,  autho- 
rity, privilege,  protection,  or  exemption,  set  up  or 
claimed  under  the  commission,  or  order  or  sanc- 
tion, of  any  foreign  state  or  sovereignty,  the  vali- 
dity or  effect  whereof  depends  upon  the  law  of 
nations,  or  under  color  thereof  Act,  1842,  c//.  527. 
This  act  is  sometimes  known  as  the  McLeod 
act ;  and  was  passed  at  or  about  the  time  of  his 
arrest  and  trial  in  New- York. 

TO   ISSUE   WRITS   OF    NE    EXEAT    AND  INJUNCTION. 

Writs  of  JVc  Exeat  (1)  and  of  Injunction  (2)  may    actnjtss. 
be  granted  by  any  judge  of  the  supreme  court,  in  ^yr'^'^  "*" 

and  In- 

junctiou. 

Ne  Exeat. 

(1)  The  district  judges  of  the  courts  of  the  United  States 
have  no  power  to  issue  writs  of  nc  exeat.  Gonon  vs.  Bocca- 
line,  2  \V;ish.  130. 

The  allidavit  upon  wliich  this  writ  will  is§ue,  should  be  posi- 
tive to  a  debt,  or  to  the  belief  of  the  plaintiff,  that  a  certain 
balance  of  account  was  due.     Ibid. 

Injunction. 

(2)  There  is  no  power,  the  exercise  of  which  is  more  deli- 
cate, which  requires  greater  caution,  deliberation  and  sound 
discretion,  or  more  dangerous  in  a  doubtful  case,  than  the 
issuing  an  injunction.  It  is  the  strong  arm  of  equity,  that 
ought  never  to  be  extended,  unless  to  causes  of  great  injury, 
where  courts  of  law  cannot  aflbrd  an  adequate  and  common- 


32  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  1783.   cases  where  they  might  be  granted  by  the  su- 
Ne  Exeat    premc  or  circuit  court ;  but  no  writ  of  nc  exeat 

not  grant- 
ed, except  — — — — 

Buitisconi- 

nieuced.  siirate  remedy  in   damages.     Bonaparte  vs.    Cain,  and  Amb. 

Railroad,  1  Bald.  205,  218.     Truly  vs.  Wauzer,  5  How.  141, 
142. 

A  court  of  the  United  States  will  not  enjoin  proceedings  in 
a  state  court.  Diggs  vs.  Woolcoot,  4  Cra.  179  ;  2  Cond.  75. 
ClarJc  vs.  Rist,  3  McLean  494.  Kittredge\s.  Emerson,  7  Law 
Rep.  312,  S.  C. ;  3  Leg.  Obs.  166  ;  and  a  state  court  has  no  juris- 
diction to  enjoin  a  judgment  of  the  circuit  court  of  the  United 
States.     McKinnan  vs.  Voorhees,  7  Cra.  278. 

Injunctions  cannot  be  granted  in  the  courts  of  the  United 
States  without  notice,  and  hence  all  of  them  are  special. 
Pernj  vs.  Parker,  1  Wood.  &  Min.  280. 

It  is  no  objection  to  an  injunction,  that  the  defendant  acts 
under  the  authority  of  a  law,  if  he  exceeds  or  abuses  his 
power,  or  if  the  law  is  unconstitutional.  Bonaparte  \s.  Cam, 
^  Am.  Railroad,  1  Baldwin,  205,  218. 

An  injunction  does  not  necessarily  act  as  a  supersedeas ;  but 
it  may  furnish  a  ground  for  the  court  at  law  to  stay  the  exe- 
cution.    Boyle  vs.  Zacharie,  6  Pet.  648,  658. 

An  injunction  will  not  lie  against  the  officers  of  the  govern- 
ment, against  performing  any  merely  ministerial  act  —  as  to 
prevent  the  secretary  of  the  treasury  from  paying  money  or- 
dered by  law.  McElrath  vs.  Mcintosh,  in  Cir.  Ct.  Dist.  of 
Columbia  in  1848.     4  Law.  Rep.  N.  S.  400. 

See  also  generally  the  above  cases,  and  also  Irrin  vs.  DixoUt 
9  How.  10.  Oshornc's  Case,  9  Whea.  733.  Arynstrong  vs. 
United  States,  1  Pet.  C.  C.  46.  Terrett  vs.  Taylor,  9  Cra.  43, 
45.  Alexander  vs.  Pendleton,  8  Cra.  422  ;  3  Cond.  216,  220. 
Atlcins  vs.  Dick,  14  Pet.  114. 

Supreme  Court. — 'An  injunction  was  granted  on  the  appli* 
cation  of  the  state  of  Georgia,  to  stay  money  in  the  hands  of 
a  marshal,  claimed  by  the  state.  Georgia  vs.  Brailesford,  2 
Dall.  402  ;  1  Cond.  3. 


POWERS  IN  COMMON.  33 


shall  be  granted  unless  a  suit  in  equity  "be  com-   act^tw 
menced,  and  satisfactory  proof  shall  be  made  to 


If  the  case  be  clear,  a  court  of  equity  will  interpose  to  quiet 
title.     Alexander  vs.  Pendleton,  8  Cra.  462  ;  3  Cond.  216. 

An  injunction  will  be  refused  where  parties  claim  lands  in 
a  territory  in  dispute  between  two  states.  New-  York  vs.  Con- 
necticut, 4  Dall.  1 ;  1  Cond.  203. 

The  prohibition  in  the  judiciary  act,  that  writs  of  injunction 
shall  not  be  ^-anted  "  without  reasonable  notice  to  the  adverse 
party,"  extends  to  injunctions  gi'anted  by  the  supreme  court, 
or  the  circuit  court,  as  well  as  to  those  granted  by  a  single 
judge.     New-York  vs.  Conn.  4  Dall.  1 ;   1  Cond.  203. 

A  shorter  notice  is  reasonable  notice,  on  an  application  for 
an  injunction  to  a  court,  than  on  an  application  to  a  single 
judge.  What  will  be  reasonable  notice,  until  a  general  rule 
shall  be  settled,  will  depend  on  the  particular  circumstances  of 
each  case.  The  particular  circumstances  of  each  case  must 
be  regarded.     Ibid. 

A  judge  of  the  supreme  court  may.  in  vacation,  allow  an 
injunction  in  these  cases  only  where  it  may  be  granted  by  the 
raiprenie  court,  or  a  circuit  court.  Licingston  vs.  Van  Mycr, 
4  Hall's  Amer  Law  Jour.  59,  cited  in  note,  1  Cond.  204. 

A  court  of  equity  will  interpose  by  injunction  to  prevent  the 
transfer  of  a  specific  thing,  which,  if  transferred,  will  be  irre- 
trievably lost  to  the  owner,  such  as  negotiable  securities  and 
Gtocks.  Oshorn  vs.  Bank  of  United  States,  9  Whea.  738  ;  5 
Cond.  741. 

An  injunction  may  issue  on  a  judgment  obtained  on  the  law 
side  of  the  circuit  court,  to  stay  proceedings  on  the  judgment, 
althoujih  a  writ  of  en-or  had  been  issued  in  the  case  from  the 
Guprcme  court.  Parker  vs.  Cir.  Ct.  of  Maryland,  12  Wliea. 
561;  6  Cond.  644. 

CiRcrrr  Court. — The  pruhibilion  contained  in  the  judiciary 
act,  thai  iiijimcrions  shall  not  be  granted  without  notice,  &c., 
extends  to   inj  mictions  gi'anted   by  the    supreme   and  circuit 


34  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  179?.   the  court  or  judge  granting  the  same,  that  the 
~       defendant   designs  quickly  to  depart   from   the 

courts,  as  well  as  to  those  granted  by  a  single  judge.     New- 
York  vs.  Connecticut,  4  Dall.  1 ;   1  Cond.  203. 

Can  a  circuit  judge  allow  an  injunction  out  of  tlie  Lounds 
of  his  own  circuit — Quere  ?  In  an  application  for  an  injunction 
in  the  case  of  Morse  vs.  O'Reilly,  made  at -Washington,  D.  C,  in 
1S4S,  to  restrain  the  defendant  from  exercising  certain  acts  in 
Kentucky,  Judge  Catron  is  understood  to  have  held  that  a  circuit 
judge  had  no  such  power  out  of  his  own  circuit.  ,  There  were 
other  points,  however,  in  the  case. 

A  circuit  court  will  grant  an  injunction  pro  tanto  to  so  much 
of  a  judgment  as  had  been  recovered  by  surprise  against  the 
defendant,  he  having  a  good  defence,  but  no  notice  of  the 
claim.  Bell  vs.  Cunningliam,  1  Sum.  89.  See  also  Dunlap  vs. 
Stetson,  4  Mason,  349. 

A  perpetual  injunction  was  granted,  in  order  to  stay  pro- 
ceedings on  a  judgment  at  law,  obtained  in  a  suit  instituted  in 
the  name  of  a  person  not  interested,  whose  name  v/as  used 
only  for  the  purpose  of  preventing  a  defence,  which  the  de- 
fendant had  against  the  real  plaintiff  in  interest,  Greenleaf  \&. 
Maker,  2  Wash.  393. 

An  injunction  may  be  issued  to  restrain  the  performance  of 
an  official  act,  by  an  officer  of  a  state,  if  the  state  law  requir- 
ing him  to  perform  the  act  is  repugnant  to  the  constitution  of 
the  United  States.  Oshorn  vs.  Bank  of  United  States,  9  Whea. 
738  ;  5  Cond.  741. 

Cases  in  which,  and  tei-ms  on  which,  injunctions,  in  cases  of 
alleged  infringements  of  patent  rights,  are  granted.  Ogle  vs. 
Ege,  4  Wash.  584.     Isaacks  vs.  Coo2)er,  4  Wash.  259. 

General  cases  for  granting  injunctions.  Bonaj)arte  vs.  Cam. 
and  Amh.  Railroad,  Bald.  205,  217. 

See,  also,  Green  vs.  Hanherry's  Ex'rs,  2  Mar.  Dec.  403. 
Strodes  vs.  Patten,  1  Mar.  Dec.  328.  Poor  vs.  Carlcton,  3 
Sum.  70.     Spooner  vs.  McCmmcll,  1  McLean,  238.     Boyd  vs. 


POWERS  IN  COMMON.  35 


United  States;  nor  shall  a  writ  of  injunction  be    act^ito. 
o-ranted  to  stay  proceedings  in  any  court  of  a  iMj..n,ii<.n 
state;  nor  shall  such  writ  be  granted  in  any  case  «'i  «x(ei.t 
without  reasonable  previous  notice  to  the  adverse 
party,  or  his  attorney,  of  the  time  and  place  of 
moving  for  the  same.     Act,  1793,  ch.  22,  §  5. 

District  judges  may  also  grant  injunctions  to  act^so?. 
to  operate  within  their  respective  districts,  in  all 
cases  which  may  come  before  the  circuit  courts; 
but  the  same  continue  only  until  the  next  term 
of  the  circuit  court,  unless  so  ordered  by  the  cir- 
cuit court,  and  cannot  be  issued  where  the  party 
has  had  reasonable  time  to  apply  to  the  circuit 
court.  Act.  1807,  ch.  13.  Parker  vs.  Cir.  Ct. 
Manjland,  12  Whea.  561;  Q  Cond.  644. 

Injunctions  may  also  be  granted  by  a  judge  of  actmsso. 
the  supreme  court,  in  cases  of  issuing  warrants 
of  distress  from  the  Treasury  Department,  where 
any  party  feels  himself  aggrieved  by  the  action  of 
the  district  judge.     Act.  1820,  ch.  107,  §  6. 


TO    ORDER,    PRODUCTION    OF    PAPERS. 

ACT,  1789. 

All  of  the  courts  (1)  of  the  United  States  shall  ^  — 

^    '  rrodnc- 

have  power  in  the  trial  of  actions  at  law,  on  mo-  ii«>u  «»  pa- 

^  ,         pcis  may 

tion  and  due  notice  thereof  being  given,  to  require 


Brown,  3  McLean,  295.     Clurlc  vs.  Rist,  Ibid.  494.     Ilaiglit 
vs.  Proprietors  Morris  Aqueduct,  4  Wash.  601. 

(1)  Tlio  clause,  "in  cases  under  circumstances  where  tliey 
might  be  compelled  to  pi-oduce  the  same  by  the  ordinai-y  rules 
of  proceeding  in  chancery  cases,"  was  intended  as  a  substitute, 


36  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTureo.  ^jj(3  parties  to  produce  books  or  writings  in  their 
beconipei-  posscssion  or  powcr,  which  contain  evidence  per- 
ofiiotiro-  tincnt  to  the  issue,  in  cases  and  under  circum- 

ducing. 

stances  where  they  might  be  compelled  to  pro- 
duce the  same  by  the  ordinary  rules  of  proceed- 
ing in  chancery;  and  if  a  plaintiff  shall  fail  to 
comply  with  such  order  to  produce  books  or'^writ- 
ings,  it  shall  be  lawful  for  the  courts  respec'ively, 
on  motion,  to  give  the  like  judgment  for  the  de- 
fendant as  in  cases  of  nonsuit ;  and  if  a  defen- 
dant shall  fail  to  comply  with  such  order,  to  pro- 
duce  books  or  writings,  it  shall  be  lawful  for  the 
courts  respectively,  on  motion,  as  aforesaid,  to  give 

so  far  as  written  documents  are  concerned,  for  a  bill  of  dis- 
covery in  equity,  in  aid  of  jurisdiction  at  law.  Guyger's  Les- 
see vs.  Gaijger,  2  Dall.  332\     Conk.  Trea.,  Ed.  1842,  263. 

(2)  CiucuiT  Court. — It  is  sufficient  for  one  party  to  suggest 
that  the  other  is  in  possession  of  a  paper,  which  he  has  given 
him  notice  to  produce  at  the  trial,  without  offering  proof  of 
the  fact.  If  the  possession  is  denied,  the  affirmative  must  he 
proved,  to  enable  the  party  to  derive  any  advantage  from  the 
non-production.     Hylton  vs.  Brotvn,  1  Wash.  298,  300. 

Upon  a  notice  of  the  defendant  to  the  plaintiff",  to  produce  a 
title  paper  to  the  land  in  dispute,  which  is  to  defeat  the  plain- 
tiff^'s  title,  the  court  will  not  compel  such  production  unless  the 
defendant  first  shows  a  title  to  the  land.  A  right  of  possession 
is  not  sufficient.  But  it  is  sufficient  if  he  show  title  to  the 
land,  though  none  is  shown  to  the  papers.     Ibid. 

When  either  party  wants  papers  in  the  possession  of  the 
other  party,  he  must  give  notice  to  produce.  If  not  produced, 
he  may  give  infeiior  evidence  of  their  contents,  or  argue  against 
the  party  not  producing  them.  But  in  either  case,  he  must 
show  them  in  the  possession  or  power  of  the  other  party,  and 
give  evidence  of  their  contents.     The  oath  of  the  j)arty,  that  he 


POWERS  IN  COMMON.  37 


judgment  against  him  or  licr  by  default.  (2)     Act    aut.itw. 
1789,  c/i.  20,  §  15. 


has  them  not,  may  be  met  by  contrary  proof  of  two  witnesses. 
Bas  vs.  iitcc/c,  3  Wash.  38^,  386. 

Whenever  a  judgment  by  default,  or  a  nonsuit,  is  intended 
to  be  claimed,  the  notice  to  produce  papers  must  give  the  party 
information  that  it  is  intended  to  move  for  a  nonsuit,  or  a 
judgment  by  default,  as  the  case  may  be.     Ibid. 

To  entitle  the  defendant  to  nonsuit  the  plaintiff  for  not  pro- 
ducing papers  which  he  was  noticed  to  produce,  the  defendant 
must  iirst  obtain  an  order  of  tlie  court  under  a  rule  that  they 
should  be  produced.  Eut  this  order  need  not  be  absolute,  but 
may  be  fiis/..     Dunham  vs.  Riley,  4  Wash.  126. 

A  notice  to  produce,  at  the  trial,  all  papers,  letters  and 
books  in  one's  possession,  relating  to  moneys  received  by  him 
under  a  particular  award,  is  sufficiently  specific.  The  oath  of 
the  party,  that  he  had  not  such  a  letter  in  his  possession,  or 
had  diligently  searched  for  it,  and  could  not  find  it,  is  sufficient 
to  prevent  secondary  evidence  of  its  contents.  Party  cannot 
be  asked,  if  he  never  received  such  a  letter.  Vasse  vs.  MlJJlin, 
4  Wash.  519,  520. 

Before  thi;  jury  arc  sworn,  and  the  trial  commenced,  it  is 
too  soon  for  a  parly  to  call  for  a  paper,  which  the  othei-  party 
has  been  nolilied  lo  produce.     Hijlton  vs.  Brown,  1  Wash.  298. 

The  afiidavlt  of  a  party  interested,  taken  without  cross- 
examination,  is  competent  evidence  on  a  motion  for  an  order 
on  the  opposite  party,  to  produce  books  and  writings,  under 
this  act.      United  States  vs.  28  Packages  of  Pins,  Gilpin,  306. 

District  Court. — A  proceeding  in  rem  is  not  within  the 
provisions  of  the  act  of  1789,  which  authorise  an  order  to 
produce  books  and  writings,  in  an  action  at  law.  United  States 
vs.  Twenty-eigJit  Packages,  Gilpin,  306,  310,  315. 

A  court  of  chancery  would  not  comjiel  a  party  to  produce 
evidence  which  would  subject  him  to  a  forfeiture.     Ibid. 

A  judgment,  as  by  default,  could  not  be  entered  against  a 
defendant  in  a  proceeding  in  rem.     Ibid. 


38  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT.  1739.  TO    SUSTAIN    SUITS    IN    EQ.UITY. 

Suits  ill  Suits  in  equity  (1)  shall  not  te  sustained  in 

equity,  a.        j     \    ^ 

when  can-  either  of  the  courts  of  the  United  States,  in  any 

notbesns-  i     •             i 

taiued.  case  wherc  plain,  adequate  and  complete  remedy 
may  be  had  at  law.     Act,  1789,  ch.  20,  §  16. 


(1)  The  equity  jurisdiction  of  the  courts  of  the  United 
States  is  independent  of  the  local  law  of  any  state,  and  is  the 
same  in  nature  and  extent,  as  the  equity  jurisdiction  of  Eng- 
land, from  whence  it  is  derived.  Therefore  it  is  no  objection 
to  this  jurisdiction,  that  there  is  a  remedy  under  the  local  law. 
Gordon  vs.  Hohart,  2  Sum.  401,  405.  Mayer  vs.  Foulkrod, 
4  Wash.  354.     Fletcher  vs.  Morey,  2  Story,  553. 

Whenever  a  court  at  law  is  competent  to  take  cognizance 
of  a  right,  and  can  afford  a  "  jjlain,  adequate  and  complete 
remedy,"  the  plaintiff'  must  proceed  at  law,  because  the  defen- 
dant has  a  constitutional  right  of  trial  by  jury.  Baker  v?. 
Biddlc,  1  Bald.  394,  405.  Andreivs  vs.  Solomon,  Peters  C.  C. 
188.      United  States  ws.  Meyers,  2  Mar.  Dec.  516. 

If  the  remedy  is  doubtful,  difficult,  not  adequate  to  the  sub- 
ject, not  so  com2:)lcte  as  in  equity,  not  so  efficient  and  practi- 
cable to  the  ends  of  justice  and  its  prompt  administration, 
equity  jurisdiction  is  not  precluded.  Ibid.  408.  See  also  9 
Whea.  842.  Boyce's  Ex'rs  vs.  Grundy,  3  Pet,  215,  Har- 
rison vs.  Rowan,  4  Wash.  202,  205, 

The  16th  section  is  merely  declaratory,  making  no  altera- 
tion whatever  in  the  rules  of  equity  on  the  subject  of  legal 
remedy.     Boyce's  Ex'rs  vs.  Grundy,  3  Pet.  210,  215. 

The  16th  section  of  the  judiciary  act  is  a  declaratory  act, 
settling  the  law  as  to  the  cases  of  equity  jurisdiction,  in  the 
nature  of  a  proviso,  limitation  or  exception  to  its  exercise. 
Balicr  vs.  Biddle,  1  Bald.  394. 

Though  the  rules  and  principles  established  in  the  English 
Chancery  at  the  Revolution  are  adopted  in  the  federal  courts, 
the  changes  introduced  there  since  then  are  not  followed  here, 


POWERS  IN  COMMON.  39 


TO   GRANT    NEW    TRIALS.  ACTJTW 

All  of  the  courts  (1)  of  the  United  States  shall  IZhli'"^' 
have  power  to  grant  new  trials,  in  causes  where  "au*ied 


especially  on  matters  of  jurisdiction,  as  to  which  the  IGth  sec- 
tion is  imperative.  iZ>/(Z.  394,  411.  See  Cat^cart  vs.  Robinson, 
5  Pet.  264,  280.     Mai/er  vs.  Foulkrod,  4  Wash.  349,  355. 

If  a  case  is  cognizable  at  common  law,  the  defendant  has  a 
right  to  trial  by  juvy,  and  a  suit  cannot  be  maintained  in  equity. 
If  the  case  is  cognizable  in  equity,  the  defendant  has  ihb  right 
to  answer  on  oath,  and  have  the  benefit  of  it  as  evidence  in 
his  favor,  and  he  cannot  in  such  a  case  be  sued  at  law.  Baker 
vs.  BhUle,  Baldwin,  394,  404,  405,  407. 

The  equity  practice  and  mode  of  proceeding  was  fixed  by 
the  act  of  1792,  subject  only  to  be  changed  by  rules  of  the  in- 
ferior courts,  or  of  the  supreme  courts,  and  cannot  be  affected 
by  state  laws,  either  prior  or  subsequent  to  the  act  of  1792. 
Maijcr  vs.  FonlJa-od,  4  Wash.  349. 

Sec  also  "  Constitutional  Provisions,"  Trial  hy  Jury,  page 
17,  and  this  same  division,  Trial  of  Issnes  of  Fact,  postca. 

(1)  \\'hcn  a  verdict  in  favor  of  the  plaintiff  is  reversed  by 
the  supreme  court,  on  a  bill  of  exceptions  to  instructions  to  the 
jury,  there  must  be  a  new  trial  awarded  by  the  court  below. 
Hudson  vs.  Gucsticr,  6  Cra.  281  ;  2  Cond.  374. 

Where  evidence  is  important  in  its  bearings,  and  not  clearly 
irrelevant,  it  is  better  to  admit  it  at  the  trial,  so  as  to  avoid  a 
motion  for  a  new  trial,  in  case  of  its  rejection.  Crocker  vs. 
Lewis,  3  Sum.  1. 

A  niution  for  a  new  trial  docs  not  suspend  the  entering  of 
judgment,  but  execution  will  be  stayed  on  application  to  the 
court.     Arnold  vs.  Jones,  Bee,  104. 

Motion  to  review  a  decree  must  fail  after  a  writ  of  error  is 
lodged,  unless  error  appear  on  the  face  of  the  record,  or  new 
matter  is  discovered  since  the  decree.  Mc  Gratli  vs.  Canda- 
lero,  Bee,  64. 


40  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  1789.  there  has  been  a  trial  by  jury,  for  reasons  for 
which  new  trials  have  usually  been  granted  in 
the  courts  of  law.     Act,  1789,  th  20,  §  17. 

A  new  trial  will  not  be  granted  for  surprise  on  account  of 
new  evidence,  whenever,  by  reasonable  diligence,  it  could  have 
been  previously  obtained.      Washhurn  vs.  Gould,  3  Story,  122. 

The  circuit  court  cannot  rehear  a  cause  at  a  term  subsequent 
to  that  in  which  the  cause  was  finally  decided.  The  Avery,  2 
Gall.  386.  Hudson  vs.  Guestier,  7  Cra.  1.  Rehear  in  gs  are  in 
the  sound  discretion  of  the  court.  Daniel  vs.  Mitchell,  1  Story 
198. 

A  new  trial  will  not  be  allowed  merely  to  let  in  new  cumu- 
lative evidence.  Alsop  vs.  Com.  Ins.  Co.  1  Sum.  451,  476  and 
cases  there  cited.     S.  P.,  Ames  vs.  Howard,  Ibid.  482. 

A  new  trial  will  not  be  granted  in  a  capital  case,  after  a  ver- 
dict regularly  rendered  upon  a  sufficient  indictment.  But  it 
may  be  granted  where  the  jury  has  been  discharged  from  giv- 
insr  a  verdict.      United  States  vs.  Gihert,  2  Sum.  19. 

Can  the  couits  of  the  United  States  grant  new  trials  in  the 
cases  of  misdemeanors  ?     Query.     Ibid. 

An  opinion  has  however  been  expressed  by  McLean,  J., 
holding  that  there  is  no  constitutional  inhibition  to  the  exer- 
cise of  such  a  power,  and  that  the  courts  of  the  United  States 
have  power  to  gi-ant  new  trials  in  criminal  cases  as  well  as 
those  that  are  capital,  as  in  others.  The  position  assumed,  he 
sustained  from  the  practice  of  the  state  courts,  and  of  the  su- 
preme court  in  United  States  vs.  Fries,  3  Dall.  515.  United 
States  vs.  Keen,  1  McLean,  429,  431-437. 

A  new  trial  will  not  be  granted  against  strong  circumstances 
of  equity,  Dcnniston  vs.  McKcen,  2  McLean,  253 ;  nor  unless, 
in  the  opinion  of  the  court,  injustice  has  been  done.  United 
States  vs.  Martin,  Ibid.  256 ;  nor  unless  the  rules  of  law  and 
purposes  of  justice  require  it.  Benedict  vs.  Davis'  Ex'r,  Ibid. 
347. 

But  where  the  verdict  is  upon  two  counts,  (several  having 


POWERS  IN  COMMON.  4  l 


TO    ADMINISTKR    OATHS.  ACT,  1789. 

All  of  the  courts  (1)  of  tlic  United  States  shall  oaihs. 

.     .  jKiwerlo 

have  power  to  impose  and  administer  necessary  aJminis- 


oaths  and  affirmations.     Act,  1789,  c/i.  20,  §  17. 


tur. 


been  ubandoned,)  wliidi  do  not  lay  the  foundation  for  llie  da- 
mages found  by  the  jury,  a  new  trial  will  be  granted.  Jones 
vs.  VanzcuiiU,  2  McLean,  612. 

When  a  bill  of  exceptions  is  taken  at  the  trial,  a  motion  for 
a  new  trial  will  not  be  entertained,  unless  the  bill  of  excep- 
tions is  waived.     Cunningham  vs.  Bell,  5  Mason,  IGl. 

The  rules  which  govern  in  England,  relative  to  new  trials  of 
issues  out  of  chancery,  arc  not  applicable  to  the  circuit  courts, 
where  the  same  judges  who  direct,  superintend  the  trial  of  such 
issues.  Here  the  only  question  can  be,  are  the  judges  satisfied 
with  the  verdict.     Harrison  vs.  Rowan,  4  Wash.  32. 

See  also  Thomas  vs.  Hatch,  3  Sum.  171.  Kohne  vs.  Ins. 
Com.  North  America,  1  Wash.  123.  Cidhrcath  vs.  Gracy,  Ibid. 
198.  Walher  vs.  ^rnith.  Ibid.  202.  Russel  vs.  Ins.  Co.,  Ibid. 
440.  Marshal  vs.  Union  Ins.  Co.,  2  Wash.  411.  Gerhier  vs. 
Emery,  Ibid.  413.  Blagg  vs.  Phoenix  Ins.  Co.,  3  Wash.  58. 
Lonsdale  vs.  Brown,  4  Wash.  149.  Lanning  vs.  Loudon,  4 
Wash.  332. 

The  courts  of  the  United  States  have  no  authority  to  order 
a  peremptory  nonsuit  against  the  will  of  the  plaintiff  He 
cannot  be  deprived  of  the  right  to  a  trial  by  jur^s  which  is 
secured  him  by  law.  Elmore  vs.  Grimes,  1  Peters,  4G9.  De 
Wolf\».  Rabaiid,  1  Peters,  476.  Crane  vs.  Lessee  of  Morris, 
Sfc,  6  Peters,  598. 

(1)  The  power  to  administer  oaths  is  also  conferred  on  com- 
missioners by  the  act  of  1812,  ch.  25;  and  on  notaries  public, 
by  the  act  of  1850,  ch.  52. 

An  aflidavit  not  sworn  to  before  a  judge  or  a  commissioner 
(or  notary  public,)  appointed  to  administer  an  oath,  cannot  be 
read  in  evidence.  Ilaight  vs.  Prdj?rietors  of  Norris  Aqueduct, 
4  Wash.  601. 


42  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT.  1789  TO    PUNISH    CONTEMPTS. 

contem'ts,       ^w  of  the  coui'ts  (1)  of  tliG  United  States  shall 

piiuish-  ^ 

meiit  of.      have  power  to  punish  by  fine  and  imprisonment, 

(1)  The  courts  of  the  United  States  have  no  common  law 
jurisdiction  of  crimes  against  the  United  States.  But  inde- 
pendent of  statutes,  courts  have  power  to  fine  for  contempts, 
and  imprison  for  contumacy,  and  to  enforce  obedience  to  their 
orders.      United  States  vs.  Hudson,  7  Cra.  32  ;  2  Cond.  405. 

The  jDOwer  of  punishing  contempts  is  an  incident  to  courts 
of  justice,  y  Trial  of  Smith  c^  Ogdcn,  73,  cited  2  Cond.  407, 
note. 

If  a  pei-son  attached  for  a  contempt,  purge  himself  on  oath, 
the  court  will  not  hear  colhiteral  evidence  for  the  purpose  of 
impeaching  his  evidence,  and  proceeding  against  him  for  the 
contempt.  But  if  perjury  appear,  the  party  Avill  be  recognized 
to  answer,  &;c.      United  States  vs.  Dodge,  2  Gall.  313. 

Any  publication  pending  a  suit,  reflecting  upon  the  court, 
the  jury,  the  parties,  the  officers  of  the  court,  counsel,  &c., 
with  reference  to  the  suits,  or  tending  to  influence  the  decision 
of  the  controversy,  is  a  contempt  of  court,  and  punishable  by 
attachment.  Hollinsgwo7-th  vs.  Duane,  Wallace  77,  decision 
made  in  1801. 

Unfair  practices  towards  a  witness  who  is  to  give  testimony 
in  court,  or  oppression  under  color  of  its  process,  although 
those  practices  and  that  oppression  were  acted  out  of  the  dis- 
trict in  which  the  court  is  sitting,  may  be  punished  by  attach- 
ment, provided  the  person  who  has  thus  demeaned  himself 
comes  within  the  jurisdiction  of  the  court.     1  Burr's  Trial,  352. 

It  is  not  a  contempt  of  court  to  serve  a  person,  while  attend- 
ing at  the  court  as  a  party  in  a  cause,  or  as  a  witness,  with  a 
summons.  This  privilege  extends  to  exemption  from  arrest, 
and  no  further.     BligMs  ExWs  vs.  Fisher,  1  Pet.  C.  C.  41. 

But  it  is  a  contempt  to  serve  process,  either  of  summons  or 
capias,  in  the  actual  or  constructive  presence  of  the  court. 
lUd. 


POWERS  IN  COMMON.  43 


at  the  discretion  of  said  courts,  all  contempts  of  actj7*. 
authority  in  any  cause  or  heaving  before  the  same. 
Ac/,  1789,  rA.  20,  §  17. 

The  power  of  the  several  courts  of  the  United  actm=3!. 
States  to  issue  attachments  and  inflict  summary  J-;.";;/';;;;;," 
punishments  for  contempts  of  court,  shall  not  be  tempt  oc- 

1  *■  ^         curling  in 

construed  to  extend  to  any  cases  except  the  mis-  prescie 

oi  court. 

behavior  of  any  person  or  persons  in  the  presence 
of  the  said  courts,  or  so  near  thereto  as  to  obstruct 
the  administration  of  justice,  the  misbehavior  of 
any  of  the  officers  of  the  said  courts  in  their  offi- 
cial transactions,  and  the  disobedience  or  resis- 
tance by  any  officer  of  the  said  courts,  party, 
juror,  ^vitncss  or  any  other  person  or  persons,  to 
any  lawful  Avrit,  process,  order,  rule,  decree  or 
commandsof  the  said  courts.  Jcf,  1831,  c/?.  79,  §  1. 


Tlie  supremo  cuuit  will  not  grant  a  habeas  corpus  where  a 
party  has  been  committed  for  a  contempt,  by  a  court  having 
competent  jurisdiction.  Ex  parte  Kearney,  7  Whea.  38 ;  5 
Contl.  225. 

An  attachment  is  necessary  only  when  the  party  is  not  pre- 
sent in  court ;  when  he  is  present,  the  court  may  make  an 
order  that  he  answer  further  interrogatories,  to  purge  his  sup- 
posed contempt,  to  be  drawn  up  at  the  bar.  United  States  vs. 
Green,  3  Mason,  482,  484. 

Fur  contempts  to  inferior  jurisdictions,  not  of  record,  not 
having  a  general  power  to  fine  and  imprison,  (unless  committed 
in  presence  of  the  olFiccr  and  punished  instanter,)  there  is  no 
other  method  than  by  indictment.  Ilullingsworth  vs.  Duane, 
Wallace,  77,  92,  note. 

^V^lcrc  a  counsellor  practising  in  the  highest  court  of  a  state, 
has  been  struck  off  the  roll  of  counsellors  of  the  district  court 


44  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  17S?.  TO    MAKE    RULES. 

Rules,  AH  of  the  courts  (1)  of  the  United  States  shall 

power  to 

make,  coij-  havc  Dowcr  to  iiiakc  and  establish  all  necessary 

ferred  on  ,  .  .  .  , 

thecouiu.  rules  for  the  orderly  conducting  business  in  the 
said  courts,  provided  such  rules  are  not  repugnant 
to  the  laws  of  the  United  States.     Acf,  1789,  cfi. 


ACT,  1793. 


20,  §  17. 

It  shall  be  lawful  for  the  several  courts  of  the 
United  States,  from  time  to  time,  as  occasion 
may  require,  to  make  rules  and  orders  for  their 
respective  courts,  directing  the  returning  of  writs 
and  processes,  the  filing  of  declarations  and  other 
pleadings,  the  taking  of  rules,  the  entering  and 

of  the  United  Stales  of  tlic  state  where  he  resides,  hy  the  order 
of  the  judge  of  that  court,  for  a  contem^Jt,  such  order  or  act 
will  not  authorise  the  supreme  court  to  refuse  his  admission  as 
a  counsellor  of  said  supreme  court.  Ex  parte  TiUhigJiaxt,  4 
Peters,  108. 

See  also,  United  States  vs.  Montgomery,  2  Dall.  33.  United 
States  vs.  Coolidge,  2  Gall.  3G4. 

(1)  Every  court  possesses  the  power  to  make  its  own  rules, 
unless  forbidden  by  law;  and  the  17th  section  of  the  judiciary 
act  vests,  expressly,  this  power  in  the  courts  of  the  United 
States.     Golden  vs.  Prince,  3  Wash.  313. 

Every  court  of  equity  possesses  the  power  to  mould  its  rules 
in  relation  to  the  time  and  manner  of  appearing  and  answering, 
so  as  to  prevent  the  rule  from  working  injustice  ;  and  it  is  the 
duty  of  the  court  to  exercise  a  sound  discretion  in  the  use  of 
such  power.  The  rules  prescribed  by  the  supreme  court  were 
not  intended  to  deprive  the  courts  of  the  United  States  of  this 
well  known  and  necessary  power.  Poultnei/  vs.  Cifj/  of  La- 
fayette, 12  Pet.  472,  475. 

See  also  notes  preceding  "  Rules  of  the  Supreme  Court." 


POWERS  IN  COMMON.  45 


making  up  judgments  by  defLiult,  and  other  mat-  acivitm. 
tcrs  in  the  vacation  and  otherwise,  in  a  manner 
not  repugnant  to  the  laws  of  the  United  States, 
to  regulate  the  practice  of  the  said  courts  respec- 
tively, as  shall  be  fit  and  necessary  for  the  ad- 
vancement of  justice,  and  especially  to  that  end 
to  prevent  delays  in  proceedings.  Act,  1793,  ch. 
22,  §  7. 


ACT.  1789. 


TO    RENDER    JUDGMENT    ACCORDING    TO    EQUITY. 

In  all  cases  brought  before  either  of  the  courts       — 

.ludgmeut, 

of  the  United  States  to  recover  the  forfeiture  an-  when  to 

be  accord- 

nexed  to  any  articles  of  agreement,  covenant,  iug  to 
bond  or  other  specialty,  where  the  forfeiture, 
breach  or  non-performance  shall  appear,  by  the 
default  or  confession  of  the  defendant,  or  upon 
demurror,  the  court  before  whom  the  action  is, 
shall  render  judgment  therein  for  the  plaintiff  to 
recover  so  much  as  is  due  according  to  equity; 

L>'iniages 

and  when  the  sum  for  which  judgment  should  when  to 

,  ^      ,  be  assess- 

be  rendered  is  uncertain,  the  same  shall,  if  either  ^-.iby  a 
of  the  parties  request  it,  be  assessed  by  a  jury. 

Ac/,  1789,  c//.  20,  §26. 

TO    TAKE    DEPOSITIONS    DE    BENE    ESSE. 

The  mode  of  proof  (1)  by  oral  testimony  and    Acrjrsg. 
examination  of  witnesses  in  open  court,  shall  be  ^/;^Jf  ^^ 

(1)  The  provisions  of  the  act  of  1789,  apply  only  to  circuit 
and  district  courts.      The  Argo,  2  Whea.  287  ;  4  Cond. 


46  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  17S0.   the  same  in  all  the  courts  of  the  United  States, 
oral  tetti-    as  wcU  in  the  trial  of  causes  in  equit}'-,  and  of 

iiiony.  I 

Deponent  being  a  seaman,  and  liable  to  be  ordered  to  some 
other  place,  not  a  sufficient  reason  for  taking  his  deposition 
under  the  act  of  1789.      The  Samuel,  1  Wliea.  9  ;   3  Cond.  46G. 

The  authority  given  by  the  act  of  1789,  must  be  construed 
strictly ;  all  the  requisites  must  be  complied  with  before  the 
testimony  can  be  admitted.  Bell  vs.  Morrison,  1  Pet.  C.  C. 
351.  Patapsco  his.  Co.  vs.  Southgate,  5  Pet.  604.  United 
States  vs.  Coolidge,  1  G-all.  488.  Evans  vs.  Hetlick,  3  Wash. 
408.  Tliomas  vs.  United  States,  1  Mar.  Dec.  367.  The  Sa- 
muel, 1  Whea.  9  ;  3  Cond.  466,  469.  United  States  vs.  S7nith, 
4  Day,  121.     Jo7ies  vs.  Ncale,  N.  Carolina  Cases,  81. 

The  act  of  1789  is  not  peremptory  that  depositions  shall  be 
taken  and  used,  but  only  that  they  may  be  taken  and  used. 
Prouty  vs.  Rugglcs,  5  Law  Rep,  161. 

If  the  caption  of  a  deposition  state  the  place  where  it  is 
taken,  it  is  sufficient.      Tooker  vs.  Thomjyson,  3  INIcLean,  92. 

The  deposition  of  a  person  residing  out  of  the  state,  and 
more  than  one  hundred  miles  from  the  jilace  of  trial,  cannot 
be  read  in  evidence,  unless  taken  under  a  commission.  Evans 
vs.  Hettich,  3  Wash.  408,  418.  Blcecher  vs.  Bond,  3  Wash. 
529,  531.  See  also  explanatory  of  the  above  cases.  Rhoades'' 
Lessee  vs.  Selin,  4  Wash.  715,  724. 

It  has  however  been  held  by  the  supreme  court,  that  the 
provisions  of  the  30th  section  are  not  confined  to  dejDositions 
taken  within  the  district  where  the  court  is  held.  And  where 
the  witness  lives  at  a  greater  distance  than  one  hundred  miles 
from  the  place  of  trial,  it  is  not  necessary  in  order  to  read  the 
deposition  in  evidence,  to  show  on  the  trial  the  disability  of 
the  witness  to  attend  personally.  Witnesses  in  such  court, 
are  considered  permanently  beyond  a  compulsory  process. 

But  the  deposition,  in  such  case,  may  not  always  be  absolute  ; 
for  the  party  against  w^hom  it  is  used,  may  prove  that  the  wit- 
ness has  removed  within  reach  of  a  subpoena  after  the  deposi- 


POWERS  IN  COMMON.  47 

ACT,  1789. 


admiralty  and  marilime  jurisdiction,  as  oi  actions       _ 
at  common  law ;  and  when  the  testimony  of  any 
person  shall  be  necessary  in  any  civil  cause  de- 


tion  was  taken  ;  and  if  that  fact  was  known  to  the  party,  he 
would  be  bound  to  procure  his  personal  attendance.  The 
onus,  however,  of  proving  this,  would  rest  upon  the  party  op- 
posing the  admission  of  the  deposition  in  evidence.  Patapsco 
Ins.  Co.  vs.  Sonthgate,  5  Pet.  604,  616. 

Depositions  taken  de  bene  esse  cannot  be  read  in  evidence, 
unless  the  party  who  offers  them,  shows  that  the  witnesses 
were  subpoenaed,  and  cannot  attend.  Pcnns  \s.  Ingraliam,  2 
Wash.  487.  Pcttibone  vs.  Derringer,  4  Wash  215.  TJiomas 
^  Henry  vs.  United  States,  1  Mar.  Dec.  367. 

Unless  he  is  so  old,  and  generally  so  infirm  that  his  attendance 
could  not  be  expected ;  the  age  of  sixty-five  not  of  itself  suffi- 
cient to  entitle  it  to  be  I'ead.     Banert  vs.  Day,  3  Wash.  243. 

In  a  case  of  attachment  against  a  witness  for  failing  to  obey 
a  subpcena  to  attend  before  a  United  States  court  commission- 
er. Judge  Betts,  in  United  States  circuit  for  the  southern  dis- 
trict of  New- York,  decided  that  when  a  witness  lives  or  resides 
more  than  one  hundred  miles  from  the  place  of  trial,  he  is 
bound  to  obey  the  subpoena  to  appear  and  testify  before  a 
commissioner,  under  the  acts  of  congi'ess ;  and  a  disobedience 
of  such  subpoena  is  contempt  of  court,  for  which  attachment 
against  him  will  be  sustained.  In  the  judge's  decision  he  re- 
marked that  this  had  been  the  practice  in  the  circuit  court 
for  the  southern  district  of  New- York  for  twenty  years.  This 
decision  should  dispel  the  doubts  of  any  United  States  com- 
missioner, who  has  entertained  any,  on  this  point  of  practice, 
and  greatly  facilitates  the  taking  of  testimony. 

The  deposition  of  a  witness,  who  resides  three  hundred 
miles  from  where  the  court  is  held,  taken  de  hene  esse,  cannot 
be  read  in  evidence,  unless  the  witness  was  served  with  a  sub- 
poena, and  he  cannot  attend.  Broicn  vs.  Galloway,  1  Pet.  C.  C. 
291. 


48  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT.  US9.  pending  in  any  district  in  any  court  of  the  United 
Testimo-  Statcs,  who  sliall  live  at  a  greater  distance  from 
^Ise  vvbe"f  the  place  of  trial  than  one  hundred  miles,  or  is 
bonnd  on  a  voyage  to  sea,  or  is  about  to  go  out  of 
the  United  States,  or  out  of  such  district,  and  to  a 
greater  distance  from  the  place  of  trial  than  as 
aforesaid,  before  the  time  of  trial,  or  is  ancient  or 
very  infirm,  the  deposition  of  such  person  may  be 
taken  de  bene  esse,  before  any  justice  or  judge  of  any 
of  the  courts  of  the  United  States,  or  before  any 
before  chaucellor,  justice  or  judge  of  a  supreme  or  supe- 
rior court,  mayor  or  chief  magistrate  of  a  city,  or 
judge  of  a  county  court,  or  court  of  common 
pleas  in  any  of  the  United  States,  (or  before  any 
commissioner  appointed  under  the  statute  of  1 S 1 2, 
ch.  25,  to  take  depositions — see  act,  1817,  ch.  30,) 
not  being  counsel  or  attorney  to  either  of  the 
parties,  or  interested  in  the  event  of  the  cause, 
provided  that  a  notification  from  the  magistrate 
"°q,jfj.g'j'.  before  whom  the  deposition  is  to  be  taken  to  the 
adverse  party,  to  be  present  at  the  taking  of  the 
same,  and  to  put  interrogatories,  if  he  think  fit, 
be  first  made  out  and  served  on  the  adverse  party, 
or  his  attorney,  as  either  may  be  nearest,  if  either 


Witnesses  are  entitled  to  full  travel  fees,  though  living  more 
than  one  hundred  miles  from  the  place  of  trial.  Trouty  vs. 
Rugglcs,  5  Law  Rep.  IGl. 

If  it  appear  on  the  face  of  the  deposition,  that  the  officer 
taking  the  same  w^as  authorised  by  the  act,  it  is  sufficient  in 
the  first  instance,  without  any  proof  he  was  such  officer.  Rug- 
gles  vs.  BucJcnor,  1  Paine  358, 


POWERS  IN  COMMON.  49 


exauiini'd. 


is  witliiii  one  himdred  miles  of  the  place  of  such    aoiu7S'j. 
caption,  allowing  time  for  their  attendance  after  i.n,:ti,„f 
notified,  not   less  than  at  the  rate  oi    one  day, 
Sundays  exclusive,  for  every  twenty  miles  travel. 
And  in  causes  of  admiralty  and  maritime  juris- 
diction, or  other  causes  of  seizure,  when  a  libel 
shall  be  filed,  in  which  an  adverse  party  is  not 
named,  and  depositions  of  persons  circumstanced 
as  aforesaid  shall  be  taken  before  a  claim  be  put 
in,  the  like  notification  as  aforesaid  shall  be  given  |"i^y°"' 
to  the  person  having  the  agency  or  possession  of  '^^"'^^s- 
the  property  libelled  at  the  time  of  the  capture  or 
seizure  of  the  same,  if  known  to  the  libellant. 
And  every  person  (2)  deposing  as  aforesaid,  shall  howTo  be 
be  carefully  examined  and  cautioned,  and  sworn 
or  affirmed  to  testify  the  whole  truth,  and  shall 
subscribe  the  testimony  by  him  or  her  given,  after 
the  same  shall  be  reduced  to  writing,  which  shall 
be  done  only  by  the  magistrate  taking  the  depo- 
sition, or  by  the  deponent  in  his  presence ;  and 

(2)  The  person  taking  the  deposition  under  the  act  of  1789, 
must  certify  it  was  reduced  to  writing,  either  by  himself  or 
the  deponent  in  his  presence.  Pettihone  vs.  Derringer,  4  Wash. 
215,  219. 

AVlion  tlic  certificate  of  a  magistrate,  taking  a  deposition, 
stated  it  to  have  lieen  ^vritten  in  his  presence,  without  saying 
by  whom,  and  it  appeared  that  the  substance  of  it  had  been 
reduced  to  writing  by  the  deponent  ten  days  before,  at  a  dif- 
ferent phice,  when  the  magistrate  was  not  present,  such  depo- 
sition is  not  admissable.  United  States  vs.  Smith,  4  Day, 
121. 

4 


50  JURISDICTION  OF  THE  FEDERAL  COURTS 

ACT,  1783.    the  depositions  (3)  so  taken  shall  be  retained  by 
Deposition  siich  magistrate  until  he  deliver  the  same,  with 
posed  of.     his  OAvn  hand  into  the  court  for  which  they  were 
taken;  or  shall,  together  with  certificate  of  the 
reasons  as  aforesaid  of  their  being  taken,  and  of 
the  notice,  if  any,  given  to  the  adverse  party,  be 
by  him,  the  said  magistrate,  sealed  up  and  direct- 
ed to  such  court,  and  remain  under  his  seal  until 
Witnesses   opcucd  iu  court.     And  any  person  may  be  com- 
u)'aucid.    pelled  to  appear  and  depose  as  aforesaid  in  the 
same  manner  as  to  appear  and  testify  in  court. 
Testimony  And  iu  tlic  trial  of  any  cause  of  admiralty  and 

ill  admi- 
ralty can-    maritime  jurisdiction  in  a  district  court,  the  de- 

.•.ommii-      cree  in  which  may  be  appealed  from,  if  either 

ted  to  vvri-  n  •    /•       i  i 

ting ;  party  shall  suggest  to  and  satisfy  the  court  that 
probably  it  will  not  be  in  his  power  to  produce 
the  Avitnesses  there  testifying  before  the  circuit 
court,  should  an  appeal  be  had,  and  shall  move 
that  their  testimony  be  taken  down  in  writing,  it 
shall  be  so  done  by  the  clerk  of  the  court.  And 
when  used  If  an  appeal  be  had,  such  testimony  may  be  used 
on  app^a .  ^^^  ^^^^  tYml  of  the  samc,  if  it  shall  appear  to  the 

satislaction  of  the  court  which  shall  try  the  ap- 
peal, that  the  witnesses  are  then  dead  or  gone  out 


(3)  It  is  a  fatal  objection  to  a  deposition,  that  it  was  opened 
out  of  court,  Beale  vs.  Thompson,  8  Cra.  70  ;  3  Cond.  35.  Uni- 
ted States  vs.  Price's  Adin'rs,  2  "Wash.  356. 

Since  the  act  of  1803,  ch.  40,  in  admiralty  as  well  as  in 
equity  cases  carried  up  to  the  supreme  court  by  appeal,  the 
evidence  goes  with  ihe  cause,  and  it  must  consequently  be  in 
writing.     ScJir.  Boston,  1  Sum.  328,  332. 


POWERS  IN  COMMON.  51 


stalem 


of  the  United  States,  or  to  a  j>reater  distance  than  Acx^rca. 
as  aforesaid  from  the  place  where  the  court  is  sit- 
ting, or  that  by  reason  of  age,  sickness,  bodily 
infirmity,  or  imprisonment,  they  are  unable  to 
travel  and  appear  at  court,  but  not  otherwise. 
And  unless  the  same  shall  be  made  to  appear  on  Deposi- 

,  .     ,       ^  .  -,  .  liiiuK  may 

the  trial  of  any  cause,  with  respect  to  witnesses  i)-  "sod  ut 
whose  depositions  may  have  been  taken  therein, 
such  depositions  shall  not  be  admitted  or  used  in 
the  cause.     ProvldecL  (4)  that  nothing  herein  shall  ^';''"''"' 
be  construed  to  prevent  any  court  of  the  United  ?" '>  ^,'" 

A  J  issued. 

States  from  granting  a  dedhims  potcstutan  to  take 
depositions  accordhig  to  common  usage,  when  it 
may  be  necessary  to  prevent  a  failm'e  or  delay  of 


(4)  Dcposilions  taken  under  a  dcdimus  potest atem,  under  the 
30th  section,  act  of  17S9,  arc  under  no  circumstances  to  be 
considered  as  taken  de  hene  esse ;  whether  the  witnesses  reside 
beyond  the  process  of  the  court,  or  within  it,  the  provisions  of 
the  act  relative  to  depositions  de  bene  esse  being  confined  to 
those  taken  under  the  enacting  part  of  the  section.  ScrgcanCs 
Lessee  vs.  Bhldle,  4  Whea.  508 ;  4  Cond.  522. 

Above  decision  commented  on  and  explained  in  Rl/oadcs* 
Lessee  vs.  Selin,  4  Wash.  715,  723,  724. 

A  deposition,  taken  before  trial,  of  an  informer,  who  is  en- 
titled to  a  portion  of  a  fine,  forfeiture  or  penalty,  is  not  ailmis- 
sable  evidence.  The  act  of  congress  only  makes  such  an  in- 
former a  competent  witness,  when  "  he  shall  be  necessary  as  a 
witness  on  the  trial ;"  of  which  necessity  the  court  must  judge 
after  heai'ing  the  other  testimony.  TZ/c  T/iomas  and  Henry 
vs.  United  States,  1  Mar.  367. 

Sec  nlso,  "  Rules  in  Equity,"  Rules  68  and  70,  and  notes  to 
the  sani''. 


52 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1781.   justice,  Avhich  power  they  shall  severally  possess, 
Deposi-      nor  to  extend  to  depositions  taken  mperpe^wam 


tions  tre 
prrpdiiam 
rei  vicmo- 
riam.   iu;iy 
be  taken. 


ACT.  1802. 

TestiiDO- 
nyin  o(]ui- 
ty  cases 
when  to 
be  by  de- 
position. 


7-ei  memoi'iarii,  which,  if  they  relate  to  matters 
cognizable  in  any  court  of  the  United  States,  a 
circuit  court,  on  application  made  thereto  as  a 
court  of  equity,  may,  according  to  the  usages  in 
chaucery,  direct  to  he  taken.  Act,  1789,  ch.  20, 
§30. 

TESTIMONY    IN    EaUITY    BY    DEPOSITION. 

In  all  suits  in  equity,  (1)  it  shall  he  in  the  dis- 
cretion of  the  court,  upon  the  request  of  either 
party,  to  order  the  testimony  of  the  witnesses 
therein  to  be  taken  by  depositions ;  which  depo- 
sitions shall  be  taken  in  conformity  to  the  regu- 
lations prescribed  by  law  for  the  courts  of  the 
highest  original  jurisdiction  in  equity,  in  cases  of 
a  similar  nature,  in  that  state  in  which  the  court 
of  the  United  States  may  be  holden:  Providedy 
however,  that  nothing  herein  contained  shall  ex- 
tend to  the  circuit  courts,  which  may  be  holden 
in  those  states  in  which  testimony  in  chancery 
is  not  taken  by  deposition.     Act.  1802,  ch.  3 1,  §  25. 


(1)  In  appeals  to  the  supreme  court  from  tlic  circuit  court, 
in  chancery  cases,  the  parol  testimony  whi(-h  is  heard  at  the 
trial,  in  the  coui't  below,  ought  to  appear  iu  the  record.  Penn. 
vs.  Conn.,  5  Whea.  424;  4  Cond.  716. 

The  act  of  1802  leaves  it  to  the  discretion  of  the  courts  in 
those  states  where  testimony  in  chancery  is  taken  by  deposi- 
tions, to  order,  on  the  request  of  either  party,  the  testimony  of 
the  witnesses  to  be  taken  by  depositions.     Ibid. 


POWERS  IN  COMMON.  53 


DEPOSITIONS    IN    PF.RPETUAM    RKI    MEMORIAW.  ACT.  1R12. 

Ill   any  cause   before    a   court  of  the  United  iiohs;« 

j)rrprhiom 
rci  mcmo- 
,..  .  f  f  ...  .-1  ti'im  when 

cretion,  to  admit  in  evidence  any  deposition  taken  ,ak(  n. 


States,  it  shall  he  hiwful  for  such  court,  in  its  dis- 


in  pcrpctuam  rei  menionaiv,  whicii  would  be  so 
admissible  in  a  court  of  the  state  wherein  such 
cause  is  pending,  according  to  the  laws  thereof 
Act.  1812,  ch.  25.  (1) 

TO    TAKE    DEPOSITIONS    J3Y    COMMISSION. 

Whenever  a  commission  (1)  shall  be  issued,  by    act,  is27. 
any  court  of  the  United  States,  for  taking  the  tes-  oeposi- 

tious  by 

— — — — — CDmmis- 

sioa. 
(1)  There  has,  tlius  far,  been  no  judicial  construction  of  this 

enactment. 

(1)  Althougli  the  proper  office  of  a  commission  is  to  obtain 
the  evidence  of  witnesses  residing  beyond  the  reach  of  the 
process  of  the  court,  yet  it  may  be  resorted  to  by  consent  of 
parties,  for  the  purpose  of  examining  witnesses  residing  within 
the  reach  of  process,  and  depositions  so  taken  arc  absolute. 
Seargeanfs  Lessee  vs.  Biddlc,  4  Whea.  50S ;  4  Cond.  522,  524. 

There  is  no  prartice  requiring  a  certificate  in  whose  hand- 
writing the  depositions  were  taken  down.  Kecne  vs.  JMcadc 
3  Pet.  1,  8. 

Querc — If  it  be  not  an  objection  to  a  deposition  that  it  was 
committed  to  writing  by  the  witness  before  he  was  shown  ? 
Practice  disajiprovcd  of  in  DuiJge  vs.  Israel,  4  Wash.  323. 

]^ut  held  by  Jus.  McLean,  that  it  is  not  material  wlitlher  the 
individual  be  sworn  before  or  after  he  or  the  justice  writes  the 
deposition.  If  the  dejiosilion  is  written  before  the  oath,  the 
mind  of  the  witness  is  drawn  specially  to  the  language  used, 
and  he  swears  to  it.  7'ooher  vs.  Thonq^son,  3  McLean,  P2, 
94. 


51  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ArT2^27.  finiony  of  a  witness  or  witnesses,  at  any  place 
.  within  the  United  States,  or  the  territories  there- 
Depositions  tiikon  iinder  a  commission  issued  by  the  defen- 
dant, may  be  read  in  evidence  by  the  phiintiff',  tliough  the 
pUanliff  had  no  notice  of  the  time  and  place  of  taking  them. 
Yeaton  vs.  Fry,  5  Cra.  335  ;  2  Cond.  273. 

Where  tlie  execution  of  a  commission  has  been  prevented 
by  the  acts  of  the  prosecutor  or  his  agents,  the  defendant, 
though  guilty  of  laches  in  taking  out  a  commission,  is  entitled 
to  a  conlinuance.      United  States  vs.  Duane,  Wallace,  5. 

The  only  mode  in  which  depositions  can  be  taken  in  a  foreign 
country,  is  under  a  commission.  Stdn  vs.  Eoicman,  13  Pet. 
209.  But  the  court  will  not  award  a  commission  until  the 
commissioners  are  named.  Van  Ste^ihorst  vs.  Marijland,  2 
Dall.  401 ;   1  Cond.  2. 

It  is  no  objection  that  ihe  depositions  are  written  in  English, 
though  the  commissioners  were  Dutchmen.  Gil])ins  vs.  Con- 
sequa,  3  Wash.  184.     S.  C.  1  Pet.  C.  C.  86. 

It  is  no  objection  to  depositions,  taken  under  a  foreign 
commission,  that  some  of  the  witnesses  may  have  been  before 
examined  in  the  United  States.  Winthroji  vs.  Union  Ins.  Co., 
2  Wash.  7. 

Where  a  commission  was  executed  in  a  foreign  country,  the 
government  of  which  refused  to  let  the  commissioners  act,  but 
the  commission  was  executed  by  a  judge  of  a  court  in  the  pre- 
sence of  the  commissioner,  the  depositions  were  permitted  to 
be  read.     Ibid. 

Under  particular  circumstances,  the  court  allowed  a  special 
commission  to  a  foreign  country,  with  instructions,  that  the  in- 
terrogatories should  first  be  fll(;d  herein  court  by  both  parties; 
that  the  commissioners  should  be  directed  not  to  admit  other 
interro<Tatories ;  and  that  neither  parties  nor  counsel  shoidd  be 
present  before  the  commissioner.  Cunningham  vs.  Otis,  1  Gall. 
166. 

The  court  having  full  power,  when  sitting  as  a  common  law 


POWERS  IN  COMMON.  55 


of,  it  shall  be  lawful  for  the  clerk  of  any  court  of   act.  ik?? 
the  United  States,   for  the   district  or  territory 

court,  to  issue  commissions  to  take  testimony  aLroatl,  will  not 
entertain  proceedings  for  such  a  purpose,  on  its  equity  side. 
Peters  vs.  Prevost,  1  Paine,  65. 

Plaintiffs  issued  a  commission  to  take  testimony  abroad; 
defendants  joined  in  it;  plaintiff' afterwards  abandoned  it,  find- 
ing a  witness  at  homo  to  prove  the  facts.  Held,  that  it  was  a 
surprise  on  the  defendant,  and  that  they  were  entitled  to  a  con- 
tinuance.    Le  Roy  vs.  Dchnvare  Ins.  Co.,  2  Wash.  233. 

A  commissicmer  cannot  issue  a  writ  of  hahcas  corpvs  ad  tes- 
tificandum, to  take  from  jail  a  person  committed  by  the  autho- 
rity of  the  United  States.     Ex  parte  Barnes,  9  Law  Rep.  314. 

Whether  a  justice  or  judge  of  the  United  States  can  exercise 
such  power  in  vacation  —  Quere  ?     Ihid. 

If  notice  be  given  that  a  deposition  will  be  taken  on  the 
8th  of  August,  and  that  if  not  taken  on  that  day,  the  commis- 
sioners will  adjourn  from  day  to  day,  until  it  shall  be  finished; 
and  the  commissioners  meet  on  the  8th,  and  adjourn  from  day 
to  dav  till  the  12th,  and  from  then  to  the  19th,  when  the  depo- 
sition is  taken,  such  deposition  is  not  taken  agreeable  to  notice. 
Bvdd/n/m  vs.  A7/7.-,  3  Cra.  293  ;   1  Cond.  535. 

Depositions  sworn  to,  but  not  signed  by  a  witness,  may  be 
read  in  evidence.     Kctland  vs.  B/sseff,  1  \Va.sh.  141. 

A  commission  which  had  been  executed  and  returned,  was 
set  aside,  because  it  had  been  opened  by  one  of  the  officers  of 
government  before  it  came  into  the  hands  of  the  clerk.  United 
States  vs.  Price's  Adni'rs,  2  Wash.  35G. 

A  commission  to  take  evidence  in  the  enemy's  country,  is 
contrary  to  the  established  practice  of  the  prize  court.  T7ie 
Diana,  2  Gall.  93. 

A  suhpama  duces  tecum  may  issue  to  the  president  of  the 
United  States.     1  Burr's  Trial,  183. 

The  circuit  court  will  issue  Letters  Rogatory,  for  the  purpose 
of  obtaining   testimony,   when   the  government  of  the  place 


56  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT.  13^27.    within   which    such  place  may  be;    and  he  is 
Siihpcena.    hcrebv  enjoined  and  required,  upon  the  applica- 
to  be  is-     tion  of  either  of  the  parties  in  the  suit,  cause, 
action  or  proceeding,  in  which  such  commission 
shall  have  been  issued,  his,  her,  or  their  agent  or 
agents,  to  issue  a  subpoena  or  subpoenas,  for  such 
witness  or  Avitnesses,  residing  or  being  within  the 
said  district  or  territory,  as  shall  be  named  in  the 
said  commission,  commanding  such  witness  or 
witnesses  to  appear  and  testify  before  the  com- 
missioner or  commissioners,  in  such  commission 
named,  at  a  time  and  place  in  the  subpoena  to  be 
Ooiitenipt    stated ;  and  if  any  witness  after  being  duly  served 

ot.  hdvv  •111  1  n 

punished.  With  sucli  subpooua,  sliall  refuse  or  neglect  to 
appear,  or  after  appearing,  shall  refuse  to  testify, 
(not  being  privileged  from  giving  testimony)  such 
refusal  or  neglect  being  proven  to  the  satisfac- 
tion of  any  judge  of  the  court,  whose  clerk  shall 


where  the  evidence  is  to  be  obtained,  will  not  permit  a  com- 
mission to  be  executed.  Nelson  vs.  United  States,  1  Pet.  C.  C. 
235. 

It  is  sufficient,  under  such  letters,  if  all  the  interrogatories 
are  substantially  though  not  formally  answered.     Ibid. 

Form  of  Letters  Rogatorij.     Ihid.  note. 

See  also,  United  States  vs.  Holmes,  2  Law  Rep.  N.  S.  382, 
where  Letters  Rogatory  ran  from  the  circuit  court  for  the 
district  of  Vermont  to  Canada.  Betts'  Adm.  Prac.  89,  642. 
Greenleaf' s  Ei:i.  1  vol.  §  320.  Clai/  vs.  Stcplienson,  7  Adol. 
and  Ellis,  18-5. 

See  also,  "Rules  in  Equity,"  Rule  69,  and  notes  to  the 
same. 


rOWERS  IN  COMMON.  57 


have  issued  such  subpa?na  or  subpoenas,  he  may    act^s.7. 
thereupon  proceed  to  enforce  obedience  to  tlie 
process,  or  to  punish  the  disobedience,  in  like 
manner  as  any  court  of  the  United  States  may  do 
in  case  of  disobedience  to  process  of  suhpcana  ad 
testificandum,  issued  by  such  court ;  and  the  Avit- 
ness  or  witnesses  in  such  cases,  shall  be  allowed 
the  same  compensation  as  is  allowed  to  witnesses 
attending  the  courts  of  the  United  States :  Pro-  "^^^^^'^^ 
vided,  that  no  witness  shall  be  required  to  attend  J^'^^j^^d 
at  any  place  out  of  the  county  in  which  he  may 
reside,  nor  more  than  forty  miles  from  his  place 
of  residence,  to  give  his  or  her  deposition,  under 
this  law.     Act.  1827,  ch.  4. 

"Whenever  either  of  the  parties  in  such  suit,  Sni.icenn 

duces  tecum 

cause,  action  or  proceeding,   shall  apply  to  any 
judge  of  a  court  of  the  United  States,  in  the  dis- 
trict of  territory  of  the  United  States,  in  which 
the  place  lor  taking  such  testimony  may  be,  for  a 
subpwna  daces  tecum  commanding  the  witness, 
therein  to  be  named,  to  appear  and  testify  before 
the  said  commissioner  or  commissioners,  at  the 
time  and  place  in  the  said  subpoena  to  be  stated, 
and  also  to  bring  or  carry  with  him  or  her,  and 
produce  to  such  commissioner  or  commissioners, 
any  paper,  writing  or  written  instrument,  or  book 
or  other  document  supposed  to  be  in  the  posses- 
sion or  power  of  such  witness,  such  judge  being 
satisfied,  by  the  affidavit  of  the  person  applying, 
or  otherwise,  that  there  is  reason  to  believe  that 


when  to 
issue. 


58  JUFJSDICTION  OF  THE  FEDERAL  COURTS. 


ACT.  is;: 


such  paper,  writing,  written  instrument,  book  or 
~  other  document,  is  in  the  possession  or  power  of 
the  witness,  and  that  the  same,  if  produced, 
would  be  competent  and  material  evidence  for 
the  party  applying  therefor,  may  order  the  clerk 
of  the  court  of  which  he  is  a  judge,  to  issue  such 
suhpooiia  duces  tecum  accordingly;  and  if  such  wit- 
ness, after  being  duly  served  with  such  subpoena 
duces  tecum,  shall  fail  to  produce  any  such  paper, 
writing,  written  instrument,  book  or  other  docu- 
ment, being  in  the  possession  or  power  of  such 
witness,  and  described  in  such  subpoena  duces  te- 

Contempt 

of.  how      f-iijri  before  and  to  such  commissioner  or  com- 

puiiislud.  . 

missioners,  at  the  time  and  place  ni  such  subpoena 
stated,  such  failure  being  proved  to  the  satisfac- 
tion of  the  said  judge,  he  may  proceed  to  en- 
force obedience  to  the  said  process  of  subpoena 
duces  tecum,  or  to  punish  the  disobedience  in  like 
manner  as  any  court  of  the  United  States  may 
do  in  case  of  disobedience  to  a  like  process,  issued 
by  such  court ;  and  when  any  such  paper,  writing, 
written  instrument,  book  or  other  document,  shall 
be  produced  to  such  commissioner  or  commis- 
sioners, he  or  they  shall,  at  the  cost  of  the  party 
requiring  the  same,  cause  to  be  made  a  fair  and 
correct  copy  thereof,  or  of  so  much  thereof  as 
shall  be  required  by  either  of  the  parties :  Pro- 
vided, that  no  witness  shall  be  deemed  guilty  of 
Conicmit,  contempt  for  disobeying  any  subpoena  directed  to 
^uiHy"?    him  by  virtue  of  this_act,  unless  his  fees  for  going 


POWEES  IN  COMMON.  59 


to,  returning^  from,  and  one  day's  attendance  at   act,  r-27 
the  place  of  examination,  shall  be  paid  or  ten- 
dered to  him  at  the  time  of  the  service  of  the 
suhponna.     Ibid. 

Previous  to  this  act  the  power  to  issue  com- 
missions was  conferred  only  in  general  terms  by 
the  act  of  1789. 

The  fees  of  commissioners  are  regulated  by  the 
following  statutes: 

Hereafter,  in  lieu  of  all  fees,  emoluments  and   act.  \m. 
receipts,  now  allowed  for  taking  and  certifying  comuiis- 
the  depositions  of  witnesses  in  civil  causes,  the  f^es'oi-' 
clerk,  commissioner,  or  other  officer,  taking  and 
certifying  the  same,  shall  be  entitled  to  receive 
no  greater  sum  whatever  than  two  dollars  for 
each  and  every  deposition  so  taken  and  certified, 
and  for  all  services  connected  therewith;    and 
when  the  taking  of  such  deposition  shall  require 
more  than  six  hours,  then  for  every  additional 
six  hours  the  like  rate  of  compensation.     Act^ 
1848,  ch.  166..    (Stat,  at  large,  292.) 

By  an  after  act  the  above  enactment  is  declared 
to  extend  and  apply  to  all  and  every  civil  cause 
between  any  parties  whatsoever,  and  to  all  admi- 
ralty proceedings,  and  the  following  proviso  was 
also  enacted : 

That  Avhere  the  actual  taking  of  any  such  de-   actjw? 
position  shall  necessarily  require  a  longer  time 
than  three  hours,  the  judge  of  the  court  in  Avhich 
said  depositions  are  to  be  used,  is  hcreb)'"  autho- 


60 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT.  1849    rized  to  certify  an  amount  not  exceeding  eight 
~~      dollars,  as  a  proper  charge  for  taking  such  deposi- 
tion ;  and  the  same  shall  thereupon  he  taxable 
as  a  part  of  the  costs  of  the  suit  in  proceeding. . 
Act,  1849,  c/i.  100.     (Stat,  at  large,  361.) 

TO    SUBSTITUTE    EXECUTOR,    ETC.,    FOR    DECEASED 
PARTY. 

ACT^rso.       ^t^gpe  any  suit  (1)  shall  he  depending  in  any 
irwhen  f^ourt  of  the   United  States,  and  either  of  the 

may  ap-  ^ 

pear. 


(1)  In  real  and  personal  actions  at  common  law,  the  death 
of  the  parties  before  judgment  abates  the  suit,  and  it  requires 
the  aid  of  some  statutory  provision  to  enable  the  suit  to  be 
prosecuted  by  or  against  the  personal  representatives  of  the 
deceased,  where  the  cause  of  action  survives.  This  is  effected 
by  the  31st  section  of  the  judiciary  act.  Green  vs.  Wathins, 
G  Whoa.  260  ;  5  Cond.  87. 

This  statute  embraces  all  cases  of  death  before  final  judg- 
ment, and  of  course  is  more  extensive  than  the  17  Car.  2,  and 
8  and  9  Vic.  3.  The  death  may  happen  before  or  after  plea 
pleaded,  before  or  after  issue  joined,  before  or  after  verdict,  or 
before  or  after  interlocutory  judgment ;  and  in  all  these  cases 
the  proceedings  are  to  be  exactly  as  if  the  executor  or  admi- 
nistrator were  a  voluntary  party  to  the  suit.  Hatch  vs.  Eustis, 
1  Gall.  160. 

But  it  is  clearly  confined  to  personal  actions.  In  real  actions, 
the  death  of  the  ancestor,  without  having  appeared,  abates  the 
suit,  and  it  cannot  be  revived  and  prosecuted  against  the  heira 
of  the  original  defendant.  If  the  heirs  are  made  parties  by  an 
order  of  the  court  in  which  the  suit  is  brought,  and  judgment 
is  entered  against  them  by  default,  for  want  of  a  plea,  upon  a 
summons  and  count  against  the  original  defendant,  they  may 


POWERS  IN  COMMON.  61 

ACT.  1789. 


parties  shall  die  before  final  judgment,  the  exe- 
cutor or  administrator  of  such  deceased  party 
who  was  plaintiff,  petitioner,  or  defendant,  in 
case  the  cause  of  action  doth  by  law  survive, 
shall  have  full  power  to  prosecute  or  defend  any 
such  suit  or  action  until  final  judgment;  and  the  ^Jl^^^^^^\ 
defendant  or  defendants  are  hereby  obliged  to 
answer  thereto  accordingly ;  and  the  court  before 
whom  such  cause  may  be  depending,  is  hereby 
empowered  and  directed  to  hear  and  determine 
the  same,  and  to  render  judgment  for  or  against 
the  executor  or  administrator,  as  the  case  may  re-  not  ap- 

,       .     .  ,  peariiigr, 

quire.     And  if  such  executor  or  admmistrator,  effect  of; 
having  been  duly  served  with  a  scire  facias  from 
the  office  of  the  clerk  of  the  court,  where  such 
suit  is  depending,  twenty  days  beforehand,  shall 


sue  out  a  writ  of  error,  and  reverse  the  judgment.  Blacker' s 
Heirs  vs.  Thomas,  7  Whea.  530 ;  5  Cond.  334. 

If  the  executor,  &:c.,  voluntaiily  becomes  a  party,  no  scire 
facias  is  necessary.  And  in  such  a  case  the  other  party  is  not 
entitled  to  a  continuance,  as  of  course.  Wilson  vs.  Codman's 
Ex'rs,  3  Cra.  193  ;   1  Cond.  493,  49G. 

The  executor  may  be  required  to  produce  his  letters  testa- 
mentary.    Ibid. 

The  old  mode  of  continuing  a  suit  at  common  law,  by  Jour- 
ney's account,  is  superseded  by  the  above  statutory  provisions. 
Richards  ct  ah.  vs.  Maryland  Ins.  Co.,  8  Cra.  84 ;  3  Cond.  48. 

See  also  generally,  Richards  vs.  Maryland  Ins.  Co.,  8  Cra. 
84  ;  3  Cond.  45.  McCoul  vs.  Lecamjh  2  Whea.  Ill;  4  Cond. 
f^S.  McNuft  vs.  Bland,  2  How.  28.  McKinncy  vs.  Carrol^ 
12  Pet.  66.  Bank  of  United  States  vs.  Weisiger,  2  Pet.  481. 
Clay  vs.  Smith,  3  Pet.  411. 


62 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTM7S9.  i;^eg-}ect  oi'  lefusG  to  become  a  party  to  the  suit,  the 
court  may  render  judgment  against  the  estate  of 
the  deceased  party,  in  the  same  manner  as  if  the 
executor  or  administrator  had  voluntarily  made 
himself  a  party  to  the  suit,  and  the  executor  or 
administrator  who  shall  become  a  party  as  afore- 
said, shall,  upon  motion  to  the  court,  where  the 
suit  is  depending,  be  entitled  to  a  continuance  of 
the  same,  until  the  next  term  of  the  said  court ; 
and  if  there  be  two  or  more  plaintiffs  or  defend- 

ty'djlfg,"  ^i^^Sj  ^nd  one  or  more  of  them  shall  die,  if  the 
cause  of  action  shall  survive  to  the  surviving 
plaintiff  or  plaintiffs,  or  against  the  surviving  de- 
fendant or  defendants,  the  writ  or  action  shall  not 
be  thereby  abated ;  but  such  death  being  sug- 
gested upon  the  record,  the  action  shall  proceed 
at  the  suit  of  the  surviving  plaintiff  or  plaintiffs 
against  the  surviving  defendant  or  defendants. 
Act,  1789,  ch.  20,  §31. 


appearing 
entitled  to 
a  coutii^u- 
aiice: 


case  of  011- 


vvhea 
I  here  are 
two  or 
liiore. 


ACT,  1789. 

Pleadings 
not  to 
abate  for 
detects  in 
form. 


TO    ALLOW    AMENDMENTS. 

No  summons,  (1)  writ,  declaration,  return,  pro- 
cess, judgment,  or  other  proceeding  in  civil  causes 

(1)  The  judiciary  act  of  1789,  cli.  20,  §  32,  is  not  to  be 
restricted  to  causes  of  original  jurisdiction,  nor  is  there  any- 
thing in  the  nature  of  appellate  jurisdiction,  which  forbids  the 
granting  of  amendments.  The  Edwards,  1  Whea.  2G1;  3 
Cond.  565. 

The  statute  is  comprehensive  enough  to  embrace  causes  of 
appellate  as  well  as  original  jurisdiction ;  and  there  is  notliing 


POWERS  IN  COMMON. 


in  any  of  the  courts  of  the  United  States,  shall    ■"''[JJ^' 
be  abated,  arrested,  quashed  or  reversed,  for  any 


in  the  nature  of  an  appellate  jurisdiction,  proceeding  according 
to  the  common  law,  which  forbids  the  granting  of  amendments. 
Anon.  1  Gall.  22. 

The  power  of  a  court  over  its  judgments  and  records,  ex- 
amined and  stated.     Bank  United  States  vs.  Moss,  6  How.  31. 
Amendments  may  be  made  at  any  time  before  judgment,  and 
in  some  cases  after.     Nchon  vs.  BarJar,  3  McLean,  379. 

Amendments  are  matters  of  discretion;  but  a  court  may  not 
in  all  cases  permit  or  refuse  amendments,  without  control. 
Mandeville  vs.  Wilson,  5  Cra.  15;  2  Cond.  175. 

Amendments  are  always  addressed  to  the  sound  discretion 
of  the  court.    Calloicay  vs.  Dohson,  1  Mar.  Dec.  119. 

A  variance,  which  is  mere  matter  of  form,  may  be  amended 
at  any  time.  Scull  vs.  Biddle,  2  Wash.  200.  S7nit7i  vs.  Jaclc- 
son,  1  Paine,  486.  Ex  parte  Bradstreet,  7  Pet.  634.  Randolph 
vs.  Barrett,  16  Pet.  138.  Hozey  vs.  Buchanan,  16  Pet.  215. 
Woodward  vs.  Broicn,  13  Pet.  1.  Ntlson  vs.  Barker,  3  McLean, 
379. 

The  allowance  or  disallowance  of  amendments  is  not  matter 
for  which  error  lies.  Chirac  vs.  ReinucJccr,  11  Whea.  280;  6 
Cond.  310. 

Amendments  in  judgments  can  not  be  made,  under  the  judi- 
ciary act,  except  as  to  defects  and  want  of  form.  Allers  vs. 
Whitney,  1  Story,  310. 

See  also,  Craig  vs.  Broun,  Pet.  C.  C.  139  ;  S.  C.  443.  Har- 
rison vs.  Rowan,  Pet.  C.  C.  489.  Tohey  vs.  Claflin,  3  Sum.  379. 
Holmes  vs.  Trout,  1  McLean,  11.  Elliot  vs.  Holmes,  Ibid.  466. 
Dwiglit  \s.  HumpJircys,  3  McLean,  104.  Nelson  \s.  Barker, 
Ibid.  379.  Brush  vs.  Rohbiiis,  Ibid.  4SG.  Hunt  vs.  Roustna- 
nicrc,  2  Mason,  342.  Scull  vs.  Briddle,  2  Wash.  200.  Hen  vs. 
Bahcoch,  4  Wash.  199. 

Supreme  Court. — Although  it  is  the  practice  of  this  court, 
where  amendments  arc  necessary,  to  remand  the  cause  to  the 


64  ,      JLTvISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^7S9.    defect  or   want   of  form ;   but   the   said   courts 

.Tudsinent ____^___ 

U)  be  ac- 

circuit  court  for  that  purpose,  (and  on  this  point  see  also  The 
Mary  Ann,  8  Wliea.  380  ;  5  Cond.  471 :  The  Divina  Pastora, 
4  Whea.  52  ;  4  Cond.  388  :  Brig  Caroline,  7  Cra.  496  ;  2  Cond. 
584  :  The  Harrison,  1  Wliea.  298  ;  3  Cond.  571  :)  such  a  pro- 
ceeding is  not  necessary ;  but  this  court  may  correct  a  record 
before  it.  Kcnticdy  vs.  Georgia  State  Bank,  8  How.  611,  citing 
act,  1789,  ch.  20,  §  32,  and  A7ion.  2  Gall.  22. 

But  an  amendment  will  not  be  permitted,  which  introduces 
a  new  subject  of  controversy ;  [Hotiseman  vs.  Schooner  NortJi 
Carolina,  15  Peters,  40;)  nor  allow  a  new  claim  for  the  first 
time  to  be  pi^esented.     Shij)  Societe,  9  Cra.  209  ;  3  Cond.  373. 

If  the  amendment  is  made  in  the  circuit  court,  the  cause  is 
heard  and  adjudicated  in  that  court;  if  the  amendment  is 
allowed  in  the  supreme  court,  the  cause  is  remanded,  with 
directions  to  allow  the  amendment  to  be  made.  The  Mariana 
Flora,  11  Whea.  1 ;  6  Cond.  201. 

Circuit  Colkt. — Amendments  may  be  made  in  revenue 
cases,  or  proceedings  i7i  rein,  brought  by  appeal  from  the  dis- 
trict court.  Anon.  1  Gall.  22.  The  Edward,  1  Whea.  261; 
3  Cond.  505. 

Circuit  courts,  on  apj)eal  from  the  district  courts,  have  power 
to  allow  amendments  of  defects  in  form  occurring  in  the  court 
below.  But  this  power  does  not  extend  to  defects  in  substance. 
Such  defects,  however,  may  be  amended  in  the  district  courts, 
on  terms,  if  made  before  final  judgment.  Smith  vs.  Jacksony 
Paine,  486. 

See,  as  regards  amendments  on  appeals  fi'om  district  to  cir- 
cuit courts.  Smith  vs.  Jackson,  1  Paine,  486  ;  and,  goner;illy, 
Wharton^ s  ExWs  vs.  Lowrey,  2  Dall.  304.  Walden  vs.  Craig, 
9  Whea.  576 ;  5  Cond.  687.  Sears  vs.  United  States,  1  Gall. 
257,  261. 

See  also,  Conk.  Adm.  606  ct  seq.  Notes  to  2  Cond.  Rep.  177. 
The  Marianna  Flora,  11  Whea.  1 ;  6  Cond.  201.  The  Divina 
Pastora,  4  Whea.  52 ;  4  Cond.  388. 


POWERS  IN  COMMON.  65 


ACT,  1789 


respectively  shiill  proceed  and  give  judgment 
according  to  the  right  of  the  cause  and  matter  in  ^^'f^-^f^^^^" 
law  shall  appear  unto  them,  without  regarding 
any  imperfections,  defects,  or  want  of  form  in 
such  writ,  declaration  or  other  pleading,  return, 
process,  judgment,  or  course  of  proceeding  what- 
soever, except  those  only  in  cases  of  demurrer.  Cases  of  a 

*  "'  _  a  demur- 

which  the  party  demurring  shall  specially  sit  doVvn  rer. 
and  express,  together  with  his  demurrer,  as  the 
cause  thereof     And  the  said  courts  respectively  ^^^^^. 
shall  and  may,  by  virtue  of  this  act,  from  time  to  Z^velfn 
time,   amend  all  and  every  such  imperfections,  ^J-^orar^' 
defects,  and  wants  of  form,  other  than  those  only  ;,S\,,^ 
which  the  party  demurring  shall  express  as  afore-  ^^rred'^to. 
said,  and  may  at  any  time  permit  either  of  the 
parties  to  amend  any  defect  in  the  process  or 
pleadings,  upon  such  conditions  as  the  said  courts 
respectively  shall,  in  their  discretion,  and  by  their 
rules,  prescribe.     Act,  1789,  cli.  20,  §  32. 


TO    ARREST    AND    HOLD    TO    BAIL. 

For  any  crime  or  offence  (1)  against  the  United    actvi789 
States,  the  offender  may,  by  any  justice  or  judge  Crimes. 

who  may 

(1)  The  supreme  court  has  jurisdiction,  under  the  constitu- 
tion and  laws  of  the  United  States,  to  bail  a  person  committed 
for  trial  on  a  criminal  charge  by  a  district  judge.  United  States 
vs.  Hamilton,  3  Dall.  17. 

But  the  circumstances  must  be  strong,  which  will,  at  any 
time,  induce  a  court  to  admit  a  person  to  bail,  who  stands 
charged  with  high  treason.  United  States  vs.  Stewart,  2  Dall.  343. 
5 


66 


JURISDICTION  OF  THE  t^EDERAL  COURTS. 


ACT,  1789. 

arrest  fur 
and  impri- 
son. 


Copies  of 
papers  to 
be  sent  to 
clfrk's 
office. 


Removal 
of  oflender 
or  witnes- 
ses. 


Bail,  when 
and  by 


of  the  United  States,  or  by  any  justice  of  the 
peace,  or  other  magistrate  of  any  of  the  United 
States  where  he  may  be  found,  agreeably  to  the 
usual  mode  of  process  against  offenders  in  such 
state,  and  at  the  expense  of  the  United  States, 
be  arrested,  and  imprisoned  or  bailed,  as  the  case 
may  be,  for  trial  before  such  court  of  the  United 
States,  as  by  this  act  has  cognizance  of  the 
offence.  And  copies  of  the  process  shall  be  re- 
turned as  speedily  as  may  be  into  the  clerk's 
office  of  such  court,  together  with  the  recogni- 
zances of  the  witnesses  for  their  appearance  to 
testify  in  the  case;  which  recognizances  the 
magistrate,  before  whom  the  commitment  shall 
be,  may  require  on  pain  of  imprisonment.  And 
if  such  commitment  of  the  offender,  or  the  wit- 
nesses, shall  be  in  a  district  other  than  that  in 
w^hich  the  offence  is  to  be  tried,  it  shall  be  the 
duty  of  the  judge  of  that  district,  where  the  de- 
linquent is  imprisoned,  seasonably  to  issue,  and 
of  the  marshal  of  the  same  district  to  execute,  a 
warrant  for  the  removal  of  the  offender,  and  the 
witnesses  or  either  of  them,  as  the  case  may  be, 
to  the  district  in  which  the  trial  is  to  be  had. 
And  upon  all  arrests  in  criminal  cases,  bail  shall 


Where  an  offender  is  to  be  arrested,  the  process  of  arrest 
employed  in  the  state  shall  be  pursued ;  but  an  arrest  is  posi- 
tively enjoined  for  any  offence  against  the  United  States.  A 
capias  a  more  proper  process  than  summons.  United  States  vs. 
Burr,  2  Robertson,  481  ;  Dupon.  on  Juris.  App.  230. 


POWERS  IN  COMMON.  67 


be  admitted,  except  where  the  punishment  may  ''^'[^^ 
be  death,  in  which  cases  it  shall  not  be  admitted  «i'"™ 

'  _  may  be 

but  by  the  supreme  or  a  circuit  court,  or  by  a  jus-  tak.u. 
tice  of  the  supreme  court,  or  a  judge  of  a  district 
court,  who  shall  exercise  their  discretion  therein, 
regarding  the  nature  and  circumstances  of  the  of- 
fence, and  of  the  evidence,  and  the  usages  of  law. 
And  if  a  person  committed  by  a  justice  of  the  su- 
preme, or  a  judge  of  a  district  court,  for  an  offence 
not  punishable  with  death,  shall  afterwards  pro- 
cure bail,  and  there  be  no  judge  of  the  United 
States  in  the  district  to  take  the  same,  it  may  be 
taken  by  any  judge  of  the  supreme  or  superior 
court  of  law  of  such  state.  Act,  1789,  ch.  20, 
§33. 


BAIL    BY    WHOM    TAKEN. 


ACT,  i7sn 

Bail,  by 
whom 
may  be 
tLikfu. 


Bail  for  appearance  in  any  court  of  the  United 
States,  in  any  criminal  cause  in  which  bail  is  by 
law  allowed,  may  be  taken  by  any  judge  of  the 
United  States,  any  chancellor,  judge  of  a  supreme 
or  superior  court,  or  chief  or  first  judge  of  com- 
mon pleas  of  any  state,  or  mayor  of  a  city  in 
either  of  them,  and  by  any  person  having  authori- 
ty from  a  circuit  court ;  which  authority,  revoca- 
ble at  the  discretion  of  such  court,  any  circuit  court 

Limita'ii'n 

(or  any  district  court  having  circuit  court  powers,)  of  iiiisan. 
may  give  to  one  or  more  discreet  persons  learned 
in  the  law  in  any  district  for  which  such  court  is 
holden,  where,  from  the  extent  of  the  district, 


68  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTv^rg?.  ^Y]d  remoteness  of  its  parts  from  the  usual  resi- 
dence of  any  of  the  before  named  officers,  such 
provision  shall,  in  the  opinion  of  the  court,  be 
necessary  :  Provided  that  nothing  herein  shall  be 
construed  to  extend  to  taking  bail  in  any  case 
where  the  punishment  for  the  offence  may  be 
death;  nor  to  abridge  any  pOAver  heretofore  given 
by  the  laws  of  the  United  States,  to  any  descrip- 
tions of  persons  to  take  bail.  Actj  1793,  c/i.  22,  §4. 
For  a  reference  to  and  list  of  many  of  the  de- 
cisions of  the  United  States  courts,  upon  the  law 
and  practice  in  respect  to  bail,  see  note  to  act  of 
1812,  Stat,  at  Large,  vol.  2,  pp.  679-80-81. 

STATE    LAWS    ADOPTED. 


ACT,  178r. 
adopted  as 


The  laws  (1)  of  the  several  states,  except  where 
the  constitution,  treaties  or  statutes  of  the  United 

(1)  Tlie  technical  term  "  iiiah  at  common  law,"  applies  to 
civil  suits  as  contradistinguished  from  criminal  prosecutions, 
and  to  suits  at  common  law  as  contradistinguished  from  those 
which  come  before  the  courts  sitting  in  equity  or  admiralty. 
Opinion  of  Marshall,  Ch.  J,  in  United  States  vs.  Burr,  2  Ro- 
bertson, 481.  Dnpon  on  Jurisdiction,  221,  228.  This  doctrine, 
however,  regarded  as  incorrect,  and  the  ruling  of  the  chief  jus- 
tice pronounced  a  mere  obiter  dictum  by  the  learned  author. 
Dupon.  on  Juris.,  37.  See  also.  Waring  vs.  Clarh,  5  How.  460. 
Parsons  vs.  Bedford,  3  Pet.  446.     Ben.  Adyn.  Prac.  109. 

The  34th  section  does  not  apply  to  the  process  and  practice 
of  the  courts.  It  is  only  considered  as  furnishing  a  rule  to 
guide  the  court  in  the  formation  of  its  judgment;  not  one  for 
carrying  that  judgment  into  execution  : — as  furnishing  a  rule 


POWERS  IN  COMMON.  69 


States  shall  otherwise  require  or  provide,  shall  be   ^^y^^ea. 
regarded  as  rules  of  decision  in  trials  at  common  [,';'^:^^;^^^ 


of  decision,  not  regulating  the  remedy.  Wayynan  vs.  Southard, 
10  Whea.  1  ;   6  Cond.  1,  5. 

Laws  which  relate  to  practice,  process  or  modes  of  proceed- 
ing, before  or  after  judgment,  are  exceptions  to  the  34lh  section, 
as  congress  have  legislated  on  the  subject.  The  supreme  court 
have  established  the  distinction  to  be  this  :  State  laws,  which 
furnish  the  court  a  rule  for  forming  a  judgment,  arc  binding 
on  the  federal  courts,  not  laws  for  carrying  that  judgment  into 
execution  ;  that  is  governed  by  the  acts  of  congress,  and  the 
rules  and  practice  adopted  pursuant  thereto.  Thompson  vs. 
Phillips,  Bald.  246,  271. 

The  laws  of  a  state  never  confer  jurisdiction  on  the  coui'ts 
of  the  United  States.  They  can  only  furnish  rules  to  ascertain 
the  rights  of  the  parties,  and  thus  assist  in  the  administration 
of  the  proper  remedies,  where  the  jurisdiction  is  vested  by  the 
laws  of  the  United  States.  Steamboat  Orleans  vs.  Pha:hus,  11 
Pet.  175,  184. 

The  object  of  the  law  of  congress  was  to  make  the  rules  of 
decisions  in  the  courts  of  the  United  Slates,  the  same  with  those 
of  the  states  ;  taking  care  to  preserve  the  rights  of  the  United 
Stales  by  the  exceptions  contained  in  the  same  section.  Justice 
to  the  citizens  of  the  several  states  required  this  to  be  done; 
and  the  natural  import  of  the  words  used  in  the  act  of  congress, 
includes  the  laws  in  relation  to  evidence  as  well  as  the  laws  in 
relation  to  property.  McNeil  vs.  Ilolbrook,  12  Peters,  84,  89,  90. 

The  court  have  uniformly  supposed,  that  the  true  interpreta- 
tion of  the  34th  section  limited  its  application  to  state  laws 
strictly  local,  that  is  to  say,  to  the  positive  statutes  of  a  state, 
and  the  construction  thereof  adopted  by  the  local  tribunals,  and 
to  rights  and  titles  to  things  having  a  permanent  locality,  such 
as  the  rights  and  titles  to  real  estate,  and  other  matters  immove- 
able and  intraterritorial  in  their  nature  and  character.  It  never 
has  been  supposed  thai  tlie  section  did  apply,  or  was  designed 


70  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTJ7S0    Ya^  in  the  courts  of  the  United  States  in  cases 
where  they  apply.     Act.  1789,  ch.  20,  §  34. 

to  apply,  to  questions  of  a  more  general  nature,  not  at  all 
dependant  upon  local  statutes  or  local  usages  of  a  fixed  and 
permanent  operation;  as,  for  example,  to  the  construction  of 
ordinary  contracts  or  other  written  instruments,  and  especially 
to  questions  of  general  commercial  law,  the  true  interpretation 
and  cflect  whereof  are  to  be  sought,  not  in  the  decisions  of 
local  tribunals,  but  in  the  general  principles  and  doctrines  of 
commercial  jurisprudence.  Swift  vs.  Tyson,  16  Peters,  2,  IS, 
19.      Van  Reymsdyk  vs.  Kane,  1  Gall.  371. 

l"lie  acts  of  limitation  of  the  several  states,  where  no  special 
provision  has  been  made  by  congress,  form  rules  of  decision  in 
the  courts  of  the  United  States  ;  and  the  same  effect  is  given  to 
them  as  is  given  in  the  state  courts.  McCluny  vs.  Silliman,  3 
Peters,  270.    Ross  vs.  Duval,  13  Pet.  45. 

The  supreme  court  has  uniformly  adopted  the  decisions  of 
the  state  tribunals,  respectively,  in  all  cases  where  the  decision 
of  a  state  court  has  become  a  rule  of  property.  Green  vs. 
Nea7,  6  Peters,  291.  See  also,  Jackson  vs.  Chew,  12  "Whea. 
153 ;  6  Cond.  489.  Talk's  Lessee  vs.  Wendell,  9  Cra.  89  ;  3 
Cond.  286.  Shipp  vs.  Miller's  Heirs,  2  Whea.  316 ;  4  Cond, 
132.  Gardner  vs.  Collins,  2  Pet.  58.  Thatcher  vs.  Poivell,  6 
Whea.  119  ;  5  Cond.  28.  United  States  vs.  Hanson,  1  Gall.  5. 
Barker  vs.  Jackson,  Paine,  559. 

The  courts  of  the  United  States,  in  cases  depending  on  the 
laws  of  a  particular  state,  will  in  general  adopt  the  construc- 
tion given  by  the  courts  of  the  state  to  those  laws.  ElmendorJ" 
vs.  Taylor,  10  Whea.  152  ;  6  Cond.  47. 

Infinite  mischief  would  ensue,  in  construing  the  statutes  of 
a  8tat«>  should  the  federal  courts  observe  a  different  rule  from 
that  which  has  long  been  established  in  the  state.  McKeen  vs. 
De  Lancey'^  Lessee,  5  Cra.  22  ;  2  Cond.  179. 

A  fixed  and  received  construction  by  a  state  court  of  its 
statute  laws,  makes,  in  fact,  a  part  of  the  statute  law.    Shelby 


POWERS  IN  COMMON.  71 


ACT   17B9 
CAUSES    HOW    MANAGED.  J__ 

In  all  of  the  courts  of  the  United  States,  the  pa'""-*. 

how  man> 

parties  may  plead  and  manage  their  own  causes  aged. 
personally,  or  by  the  assistance  of  such  counsel 
or  attorneys  at  law,  as  by  the  rules  of  the  said 
courts  respectively  shall  be  permitted  to  manage 
and  conduct  causes  therein.  Act,  1789,  di.  20, 
§35. 

And  by  act  1813,  ch.  14,  §3  (3  Stat,  at  Large,  21)    ^ct^^is. 
it  is  also  provided,  that  if  any  attorney,  proctor,  •^.'.'''''^'jy'^ 
or  other  person,  admitted  to  mananreand  conduct  liable  for 

^  '  ^  _  costs. 

<;auses  in  a  court  of  the  United  States,  or  of  the 
territories  t hereof j  shall  appear  to  have  multiplied 
the  proceedings  in  any  cause  before  the  court,  so 

vs.  Guy,  11  Whea.  361  ;  6  Cond.  345,  348  ;  and  that  wliether 
the  decisions  of  the  state  court  are  grounded  upon  statutes  of 
the  state,  or  form  a  part  of  the  unwritten  law. 

See  also,  Mutual  Assurance  Society  vs.  Watts,  1  "Wliea.  279  ; 

3  Cond.  570.  Ehnendorfvs.  Taylor,  10  Whea.  152  ;  6  Cond. 
47.  Shdby  vs.  Guy,  11  Whea.  361  ;  6  Cond.  345.  United 
States  vs.  Morrison,  4  Peters,  124.  SmitJi  vs.  CJapp,  15  Peters, 
125.  Watl^ins  vs.  Holman,  16  Peters,  25.  Long  vs.  Palmer, 
16  Peters,  Q5.  Golden  vs.  Price,  3  Wash.  313.  Camphcll  vs. 
Claudius,  Pet.  C.  C.  484.  Henderson  vs.  Gijfin,  5  Peters,  151. 
Coatcs,  Ex'rx,  vs.  Muse's  Adrn'r,  1  Mar.  Dec.  539.  Parsons  vs. 
Bedford,  3  Peters,  433.     Rohiiuwn  vs.  Campbell,  3  AMiea.  212; 

4  Cond.  235.  Toland  vs.  Sprague,  12  Peters,  300.  De  Wolf, 
vs.  Rahaud,  1  Peters,  151.  Ross  vs.  McLung,  6  Peters,  283. 
Preston  vs.  Brorcder,  1  Whea.  115  ;  3  Cond.  497.  Marlutt  vs. 
Silk,  11  Pet.  1.  Bank  United  States  vs.  Daniel,  12  Pe  ers,  32. 
Inglis  vs.  Trustees,  Sfc,  3  Peters,  127.  Broum  vs.  Jones,  2 
Gall.  477. 


72  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^sia  as  ^Q  increase  costs  unreasonably  and  vexatiously, 
such  pel  son  may  be  required,  by  order  of  court,  to 
satisfy  any  excess  of  costs  so  incurred. 


RESPECTING    PROCESS. 

The  forms  of  writs,  and  the  modes  of  proceed- 
ing in  the  federal  courts,  are  regulated  by  the  fol- 
lowing acts. 
ACT,  1792.        The  forms  of  writs,  (1)  executions  and  other 
Forms  of    proccss,  cxccpt  their  style,  and  the  forms  and 

process 

and  modes — 

(1)  AH  process  of  the  supreme  court  shall  be  in  the  name  of  the 
"  President  of  the  United  States."    Supreme  Court  Rule,  No.  5. 

The  seal  of  the  supreme  court  consists  of  the  arms  of  the 
United  States,  in  a  circle  the  size  of  a  dollar,  with  these  words 
in  the  margin  : — "  The  Seal  of  the  Supreme  Court  of  the 
United  States." 

The  seal  of  the  circuit  courts  shall  be  the  arms  of  the  United 
States,  in  a  circle  the  size  of  a  half  a  dollar,  with  these  words 
in  the  margin  :  upper  part,  "  The  Seal  of  the  Circuit  Court ;" 
lower  part,  the  name  of  the  district  for  which  it  is  intended. 

Congress  has,  by  the  constitution,  exclusive  authority  to 
regulate  the  proceedings  in  the  courts  of  the  United  States  ; 
and  the  states  have  no  authority  to  control  those  proceedings, 
except  so  far  as  the  state  process  acts  are  adopted  by  congiess, 
or  by  the  courts  of  the  United  Stales  under  the  authority  of 
congress.  Wayinan  vs.  Southard,  10  Whea.  1;  G  Cond.  1. 
Beers  vs.  Haughton,  9  Peters,  329.  Bahcock  vs.  Weston,  1 
Gall.  168. 

The  proceedings  on  executions,  and  other  process,  in  the 
courts  of  the  United  States,  in  suits  at  common  law,  are  to  be 
the  same  in  each  state  respectively,  as  were  used  in  the  supreme 
court  of  the  state  in  1789  ;  subject  to  such  alterations  and  ad- 


POWERS  IN  COMMON.  73 


modes  of  proceeding  in  suits  in  those  of  common       _ 
law,  shall  be  the  same  as  are  now  used  in  the  "[.Jj-'uV 


lu  Btates 


ditions  as  the  said  courts  of  the  United  States  may  make,  or  as 
the  supreme  court  of  tlic  United  States  shall  prescribe  by  rule 
to  the  other  courts.  Wayman  vs.  Southard,  10  Whea.  1 ;  6 
Cond.  1.     Beers  vs.  Ilaugliton,  9  Pet.  329. 

So  far  as  the  process  act  adopts  the  state  laws,  the  adoption 
is  expressly  confined  to  those  in  force  in  1789.  It  does  not 
recognise  the  authority  of  any  laws,  which  might  be  afterwards 
passed  by  the  state*  The  system  as  it  then  stood  is  adopted; 
subject,  however,  to  such  alterations  and  additions  as  the  said 
courts  respectively  in  their  discretion  deem  expedient,  or  to 
such  regulations  as  the  supreme  court  shall  think  proper,  from 
time  to  time,  by  rule,  to  prescribe  to  any  circuit  or  district 
court  concerning  the  same,  Wayman  vs.  Southard,  10  Whea. 
1 ;  6  Cond.  1.  Beers  vs.  Havghton,  9  Peters,  329.  Anon.  Pet. 
C.  C.  1.  Bank  United  States  vs.  Halsted,  10  Whea.  51  ;  6 
Cond.  22.  Bell  vs.  Davidson,  3  Wash.  328.  Craig  vs.  Broun, 
3  Wash.  503. 

This  provision  enables  the  several  courts  of  the  Union  to 
make  such  improvements  in  the  forms  and  modes  of  proceed- 
ings, as  experience  may  suggest ;  and  e^specially  to  adopt  such 
state  laws  on  this  subject,  as  might  vary  to  advantage  the  forms 
and  modes  of  proceeding  which  prevailed  in  September,  17S9. 
Wayman  vs.  Southard,  ]0  Whea.  1;  6  Cond.  1.  Bank  of 
United  States  vs.  Halstead,  10  Whea.  51  ;  6  Cond.  22.  See 
also,  Fullerton  vs.  Bank  United  States,  1  Pet.  604.  Yeaton  vs. 
Lenox,  8  Pet.  123.      Tolland  vs.  Sprague,  12  Pet.  3r0. 

Whenever,  by  the  state  laws  in  force  in  1789,  a  capias  might 
issue  from  a  state  court,  the  acts  of  1789  and  1792,  extending 
in  terms  to  that  species  of  writ,  must  be  understood  to  have 
adopted  its  use  permanently  in  the  federal  courts.  Bank  of 
United  States  vs.  January,  10  Whea.  06,  in  note. 

The  process  act  of  1789,  expressly  adopted  the  forms  of 
writs  and  modes  of  process  of  the  slate  courts  at  common  law. 


74  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^79-2.    gj^^^j  courts  respectively,  in  pursuance  of  the  act 
a.imitted     entitled   "An  act  to    reo-ulate  processes  in  the 

into  the  °  ^ 

Union  be- 

The  act  of  1792,  permanently  continued  such  adoption ;  but 
with  this  remarkable  difference,  that  they  were  subject  to  such 
alterations  and  additions  as  the  said  courts  respectively  should, 
in  their  discretion,  deem  expedient ;  or  to  such  regulations  as 
the  supreme  court  should  think  proper,  from  time  to  time,  by 
rule  to  prescribe. 

The  constitutional  validity  and  extent  of  the  power  given  to 
the  courts  of  the  United  States,  to  make  iBterations  and  addi- 
tions in  the  process,  as  well  as  in  the  modes  of  proceeding, 
was  fully  considered  in  the  cases  of  Wai/man  vs.  Southard,  and 
Bank  of  United  States  vs.  Halstcad.  The  delegation  of  power 
was  regarded  as  constitutional,  and  that  the  power  to  alter  and 
add,  embraced  the  whole  progress  of  a  suit,  from  its  com- 
mencement to  its  termination,  and  until  the  judgment  should 
be  satisfied.     Beers  vs.  HaugJiton,  9  Peters,  329,  359,  360. 

The  act  of  1828  was  made  after  the  decision  in  Wy^nan  vs. 
Southard,  and  the  Bank  of  the  United  States  vs.  Halstead, 
and  was  intended  to  confirm  the  construction  given  in  those 
cases  to  the  acts  of  1789  and  1792,  and  to  continue  the  like 
powers  in  the  courts  to  alter  and  add  to  the  processes  whether 
mesne  or  final,  and  to  regulate  the  modes  of  proceedings  in 
suits  and  upon  processes,  as  had  been  held  to  exist  under  those 
acts.  The  language  employed  seems  to  have  been  designed  to 
put  at  rest  all  future  doubts  upon  the  subject.  But  a  material 
consideration  is,  that  the  act  of  1828  expressly  adopts  the 
mesne  processes  and  modes  of  proceeding  in  suits  at  common 
law,  then  existing  in  the  highest  courts  under  the  state  laws  ; 
which  of  course  included  all  the  regulations  of  the  state  laws 
as  to  bail,  and  exemptions  of  the  party  from  arrest  and  impri- 
sonment. In  regard  also  to  writs  of  execution  and  other  final 
process,  and  "  the  proceedings  theretipon,'"  it  adopts  an  equally 
comprehensive  language,  and  declares  that  they  shall  be  the 
same  as  were  then  used  in  the  courts  of  the  state.    The  words* 


TOWERS  IN  COMMON.  75 


ACT.  1702 


courts  of  the  United   States,"  passed  Sept.  29,    ""''12 
1789,  (that  is  the  same  in  each  state  respectively  J'J^^^o^'J, 


'•  the  proceedings  on  the  writs  of  execution  and  other  final 
process,"  must,  from  their  very  import,  be  construed  to  include 
all  the  laws  which  regulate  the  rights,  duties  and  conduct  of 
officers  in  the  service  of  such  process,  according  to  its  exigency, 
upon  the  person  or  property  of  the  execution  debtor,  and  also 
all  the  exemptions  from  arrest  or  imprisonment  under  such 
process  created  by  those  laws.  Beers  vs.  Haughton,  9  Pet. 
329,  361,  362.  Walden's  Lessee  \s.  Craig's  Heirs,  14  Pet.  147. 
United  States  vs.  Knight,  14  Pet.  301.  Amis  vs.  Smith,  16 
Pet.  303.     Ross  vs.  Duval,  13  Pet.  45. 

Quere — Does  the  law  of  1828  adopt  the  processes  and  modes 
of  proceedings  in  suits  at  common  law,  other  than  executions 
and  other  final  process,  as  such  processes  and  modes  of  pro- 
ceeding existed  in  the  highest  courts  under  the  state  law  in 
1828,  except  as  to  those  states  which  were  admitted  into  the 
Union  since  September  29,  17S9  ?  Wc  think  not.  If  this  be 
so  in  those  states  admitted  previous  to  that  time,  for  the  pro- 
cesses and  modes  of  proceeding  obtaining  therein  in  the  United 
States  courts,  we  must  look  to  such  as  were  in  force  in  those 
respective  states  in  1789  ;  and  for  the  other  states,  to  those  in 
force  in  1828. 

The  acts  for  regulating  processes,  provide  that  the  forms  and 
modes  of  proceeding  in  courts  of  equity,  and  in  those  of  admi- 
ralty and  maritime  jurisdiction,  shall  be  according  to  the  prin- 
ciples, rules  and  usages  which  belong  to  courts  of  ecpiity  and 
to  courts  of  admiralty  respectively,  as  contradistinguished  from 
courts  of  common  law,  subject,  however,  to  alterations  by  the 
courts,  &c.  These  acts  have  been  generally  understood  to 
adopt  the  principles,  rules  and  usages  of  the  court  of  chancery 
of  England.     Hinde  vs.  Vattier,  5  Pet.  398. 

The  supreme  court  has  not  the  power  to  compel  the  circuit 
court  to  proceed  according  to  established  rules  in  chancery 
cases.    All  that  the  court  can  do,  is  to  prevent  proceedings 


76  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTJ792.   as  ape  now  (1789)  used  or  allowed  in  the  supreme 
courts  of  the  same  ") ;  in  those  of  equity,  and  in 

otherwise,  by  reversing  them,  when  brought  before  it  on  appeal. 
Gaines  vs.  Rclf,  15  Pet.  9. 

Under  the  process  acts,  the  proceedings  in  cases  of  admiralty 
and  maritime  jurisdiction  in  the  courts  of  the  United  States,  are 
to  be  according  to  the  modified  admiralty  practice  in  our  own 
country  engrafted  upon  the  English  practice ;  and  it  is  not  a 
sufficient  reason  for  rejecting  a  particular  process,  which  has 
been  constantly  in  tlie  admiralty  courts  of  this  country,  that  it 
has  fallen  into  disuse  in  England.  Manro  vs.  Almeida,  10 
Whea.  473  ;  6  Cond.  190. 

The  power,  under  the  process  acts,  to  adopt  rules  as  a  regu- 
lation of  proceedings  on  final  process,  so  as  to  conform  the 
same  to  those  of  state  laws  on  the  same  subject,  extends  to  the 
future  legislation  of  the  states ;  and  as  well  to  the  modes  of 
proceeding  on  executions,  as  to  the  forms  of  the  writs.  Ross 
vs.  Duval,  13  Pet.  45,  64.  See  also,  Thompson  vs.  Phillips, 
Baldwin,  246,  274. 

Whenever  by  the  laws  of  the  United  States  a  person  is  to 
be  arrested,  the  process  of  aiTest  employed  in  the  state  court 
should  be  pursued.     2  Burr's  Trial  (Robertson),  481. 

So  far  as  the  acts  of  congress  have  adopted  the  forms  of 
process  and  modes  of  proceeding  and  pleading  in  the  state 
courts,  or  have  authorized  the  courts  to  adopt  them,  and  have 
actually  adopted  them,  they  are  obligatory  ;   and  no  further. 

But  no  court  of  the  United  Stales  is  authorized  to  adopt  by 
rule  any  provision  of  state  laws  which  are  repugnant  to,  or 
incompatible  with  the  positive  enactment  of  congress  upon  the 
jurisdiction  or  practice  or  proceedings  of  such  courts.  Keary 
vs.  Far.  and  Mcch.  Bank,  Memphis,  16  Pet.  89.  Duncan  vs. 
Darst,  1  How.  301. 

The  34th  section  of  the  judiciary  act  of  1789,  does  not  apply- 
to  the  process  and  practice  of  the  courts.  It  merely  furnishes 
a  rule  for  decision,  and  is  not  intended  to  regulate  the  remedy. 


POWERS  IN  COMMON.  7T 


those   of  admiralty   and   maritime  jurisdiction,    ''''^' 
according   to    the   principles,   rules   and  usages 


Waytnan  vs.  Southard,  10  Whea.  1 ;  6  Cond.  1.      Thompson 
vs.  Phillips,  1  Bald.  274. 

The  courts  may  so  alter  the  form  of  process  of  execution 
used  in  the  state  courts,  as  to  subject  to  execution,  issuing  out 
of  the  federal  courts,  lands  and  other  property  not  thus  subject 
by  the  state  laws.  Ba7ik  of  United  States  vs.  Halstead,  10 
Whea.  51 ;  6  Cond.  22,  30.  Beers  vs.  Houghton,  9  Pet.  329. 
Ross  vs.  Duval,  13  Pet.  45.  Fullcrton  vs.  Bank  of  United  States, 
1  Pet.  604. 

No  rule,  under  the  third  section  of  the  act  of  1S28,  made  by 
a  district  judge,  will  be  recognized  by  the  supreme  court  as 
binding,  except  those  made  by  the  district  court,  exercising 
circuit  court  powers.     A7nis  vs.  Smit/i,  16  Pet.  303. 

When  the  circuit  court  adopts  the  process  pointed  out  by  a 
state  law,  there  must  be  no  essential  variance  between  them. 
Such  a  variance  is  a  new  rule,  unknown  to  any  act  of  congress, 
or  the  state  law  professedly  adopted.  No  state  law  can  be 
adopted  under  the  act  of  1828,  which  is  in  collision  with  any 
act  of  congress.  McCrachcn  vs.  Hay  ward,  2  How.  608,  616. 
Kcary  vs.  Farmers^  and  Meek.  Bank,  Memphis,  16  Pet.  89,  94. 
Amis  vs.  Smith,  16  Pet.  303,  312,  314. 

In  an  action  of  replevin  by  the  United  States,  in  the  southern 
district  of  New- York,  on  a  motion  by  the  defendant  to  set  aside 
the  writ  for  irregularity,  because  of  want  of  pledges  to  prose- 
cute and  return  the  property,  as  required  by  the  statutes  of 
New- York,  it  was  held  by  Judge  Nelson,  that  though  the  circuit 
court  had  adopted  the  rules  of  the  state  in  its  practice,  yet 
they  were  only  adopted  as  far  as  they  were  appropriate ;  and 
that  a  sovereign,  giving  no  security  for  the  privilege  of  suing 
in  his  own  courts,  any  requirement  in  the  rules  of  state  courts 
requiring  such  security  or  pledges,  did  not  apply  to  the  United 
Stales  courts.  Dexter  vs.  United  States,  Cir.  Ct.  S.  D.  N.  Y., 
May  5,  1851.     See  also  Duncan  vs.  Darst,  1  How.  301. 


78  JI/RISDICTION  OF  THE  FEDERAL  COURTS. 

ACTV17W.   which  belong  to  courts  of  equity,  and  to  courts 
of  admiralty  respectively,  as  contradistinguished 
from  courts  of  law ;  except  so  far  as  may  have 
been  provided  for  by  the  act  to  establish  the  judi- 
cial courts  of  the  United  States,  subject  however, 
to  such  alterations   and   additions   as   the  said 
courts  respectively  shall,  in  their  discretion,  deem 
expedient,  or  to  such  regulations  as  the  supreme 
court  of  the  United  States  shall  think  proper,  from 
time  to  time,  by  rule,  to  prescribe  to  any  circuit 
or  district  court  concerning  the  same.     Act,  1792, 
ch.  36,  §  2. 
ACT,  1&28.       The  forms  of  mesne  process,  except  the  style, 
lu  states     and  the  forms  and  modes  of  proceeding  in  suits, 
sinTe  ioth  in  the  courts  of  the  United  States  held  in  those 
^^  '      "  states  admitted  into  the  Union  since  the  29th  of 
September,  1789,  in  those  of  common  law,  shall 
be  the  same  in  each  of  the  said  states  respectively, 
as  are  now  used  in  the  highest  courts  of  original 
and  general  jurisdiction  of  the  same,  in  proceed- 
ings in  equity,  according  to  the  principles,  rules 
and  usages,    which  belong  to  courts  of  equity, 
and  in  those  of  admiralty  and  maritime  juris- 
diction,  according  to  the   principles,   rules  and 
usages,   which   belong  to   courts  of  admiralty, 
as  contradistinguished  from  courts  of  common 
law,  except  so  far  as  may  have  been  otherwise 
provided  for  by  acts  of  congress ;  subject,  how- 
ever, to  such  alterations  and  additions,  as  the 
said  courts  of  the  United  States  respectively  shall, 


POWERS  IN  COMMON.  79 

ACT,  1823. 


in  their  discretion,  deem  expedient,  or  to  such 
regulations  as  the  supreme  com-t  of  the  United 
States  sliall  think  proper,  from  time  to  time,  by 
rules,  to  prescribe  to  any  circuit  or  district  court 
concerning  the  same.     Ad,  1828,  ch.  68,  §  1. 

Writs  of  execution  and   other  fmal   process  Execu- 

tious  aud 

issued  on  iudo^ments  and  decrees,  rendered  in  any  liuiii  i.ro- 

''        ~  cess  same 

of  the  courts  of  the  United  States,  and  the  pro-  as  in  the 

states  rea- 

ceedings  thereupon,  shall  be  the  same,  except  their  pectiveiy. 
style,  in  each  state,  respectively,  as  are  now  used 
in  the  courts  of  such  state,  saving  to  the  courts 
of  the  United  States  in  those  states  in  which 
there  are  not  courts  of  equity,  with  the  ordinary 
equity  jurisdiction,  the  power  of  prescribing  the 
mode  of  executing  their  decrees  in  equity  by 
rules  of  court;  Provided^  however,  that  it  shall  P.ocess 

.        may  be 

be  in  the  power  of  the  courts,  if  they  see  fit  m  altered. 
their  discretion,  by  rules  of  court,  so  far  to  alter 
final  process  in  said  courts  as  to  conform  the  same 
to  any  change  which  may  be  adopted  by  the  legis- 
latures of  the  respective  states  for  the  state  courts. 
Ibid.  §  3. 

Nothing  in  this  act  contained  shall  be  construed  Act  not  \o 
to  extend  to  any  court  of  the  United  States  now  Louisiana. 
established,  or  which  may  hereafter  be  established 
in  the  state  of  Louisiana.     Ibid.  §  4. 

Practice  in  Louisiana  regulated  by  Act,  1824, 
ch.  181. 

The  provisions  of  the  act  entitled  "  An  act  to    ^cTvisii 
regrulate  processes  in  the  courts  of  the  L^nited  Actoiisss 

D  A  exteudea 


80  JURISDICTION  OF  THE  FEDERAL  COURTS. 


AC-IW842.    States,"  passed  19th  of  May,   1828,  shall  be,  and 
to  states     they  are  hereby  made  applicable  to  such  states 

admitted  ^  ^  }^ 

since  that    qs  liavc  been  admitted  into  the  Union  since  the 

date. 

date  of  said  act.     Act,  1842,  ch.  119. 

ACT,  1792.        All  writs  and  processes  issuing  from  the  su- 

wri~and   prcmc  or  a  circuit  court,  shall  bear  teste  of  the 

EowTeTt-    chief  justice  of  the  supreme  court,   (or,  if  that 

beStd"  office  shall  be  vacant,)  of  the  associate  justice 

next  in  precedence ;  and  all  writs  and  processes 

issuing  from  a  district  court,  shall  bear  teste  of 

the  judge  of  such  court,  (or,  if  that  office  shall  be 

vacant,)  of  the  clerk  thereof;  which  said  writs 

and  processes  shall  be  under  the  seal  of  the  court 

from  whence  they  issue,  and  signed  by  the  clerk 

thereof     Act,  1792,  ch.  3G,  §  1. 


TO   ARREST    AND    DETAIN    ALIEN    ENEMIES. 

ACT,i79s.       After  any  proclamation  (1)  shall  be  made  as 
Alien  ene-  aforcsald,  (thc  proclamatlon  of  the  president  of 

mies  after 

|)roclama- 

tionbythe         ,   »  mi  r>  i  •  i  t        t  •    i  •  t     •      3 

(1)  The  pov/er  of  the  president  under  this  law,  is  as  unhmited 

as  the  legislature  could  make  it.     Loclcington  vs.  Smith,  Pet. 

C.  C.  466,  470. 

Aliens  may  be  restrained  or  confined  for  other  reasons  than 
their  removal  from  the  United  States.     Ibid.  470. 

The  authority  given  to  confine  aliens  conferred  all  the  means 
of  enforcing  the  orders  the  president  should  make  respecting 
them.     Hid.  471. 

The  marshals  of  the  several  districts  are  the  proper  officers 
to  execute  his  orders.     Ibid.  ill. 

After  the  president  establishes  such  regulations  as  he  deems 
necessary,  it  is  not  necessary  to  call  in  the  aid  of  the  judicial 


POWERS  IN  COMMON.  81 


the  United  States  in  case  of  war  or  threatened    act,  u^i 
invasion,  makin£^  alien  enemies,  within  the  Uni-  presi.iem 
ted  States,  liable  to  be  apprehended,  secured  or  Sd^a" 
removed,)  it  shall  be  the  duty  of  the  several  courts  Ir  cdnfm-d 
of  the  United  States,  and  of  each  state,  having 
criminal  jurisdiction,  and  of  the  several  judges 
and  justices  of  the  courts  of  the  United  States, 
and  they  shall  be,  and  are   hereby  respectively 
authorized,  upon  complaint  against  any  alien,  or 
alien  enemies,  as  aforesaid,  who  shall  be  resident 
and  at  large  within  such  jurisdiction  or  district, 
to  tlie  danger  of  the  public  peace  or  safety,  and 
contrary  to  the  tenor  and  effect  of  such  procla- 
mation, or  other  regulations  which  the  president 
of  the  United  States  shall  and  may  establish  in 

authority,  on  all  occasions,  to  enforce  them,  and  the  marshals 
can  act  without  such  authority.     Ibid.  472-3. 

The  act  of  congress  intended  to  make  the  judiciary  auxiliary 
to  the  executive ;  and  each  department  was  to  act  independ- 
ently of  the  other,  except  that  the  former  was  to  make  the 
ordinances  of  the  latter  the  rule  of  ils  decisions.     Ibid.  474. 

An  alien  enemy  can  not  be  permitted  to  make  the  declara- 
tion ie(piired  by  law  preparatory  to  the  naturalization  of  aliens. 
Ex  parte  Ncicman,  2  Gall.  11. 

The  fact  that  the  commander  of  a  private  armed  vessel  was 
an  alien  enemy  at  the  time  of  capture,  does  not  invalidate  such 
capture.      The  Mary  and  Susan,  1  Whea.  46  ;  3  Cond.  4S0. 

All  that  would  result  from  it  would  be  the  condemnation  of 
his  interest  to  the  government.     Ibid. 

An  alien  enemy  cannot  maintain  a  suit  in  a  prize  court.  T/ic 
Emulous,  1  Gall.  oG3.  Nor  in  any  of  the  courts  of  the  United 
States.     Muinfurd  vs.  Mumfurd,  Ibid.  3GG. 

6 


82  JURISDICTION  OF  THE  FEDERAL  COURTS. 


vior. 


ACT.  179S.  the  premises,  to  cause  such  alien  or  aliens  to  be 
give  sure-  duly  apprehended  and  convened  before  such 
goo/beha-  court,  judgc  or  justice ;  and  after  a  full  examina- 
tion and  hearing  on  such  complaint,  and  sufficient 
cause  thereof  appearing,  shall  and  may  order  such 
alien  or  aliens  to  be  removed  out  of  the  territory 
of  the  United  States,  or  to  give  sureties  for  their 
good  behavior,  or  to  be  otherwise  restrained,  con- 
formably to  the  proclamation  or  regulations  which 
shall  and  may  be  established  as  aforesaid ;  and 
may  imprison  or  otherwise  secure  such  alien  or 
aliens,  until  the  order  which  shall  and  may  be 
made,  as  aforesaid,  shall  be  performed.  Act, 
1798,  ch.  66,  §  2. 


TO    HOLD    TO    THE    PEACE. 


ACT^798.        The  judges  of  the  supreme  court  and  of  the 
Power  to     several  district  courts  of  the  United  States,  and 

hold  to  the 

peace  and  all  judgcs  and  justices  of  the  courts  of  the  several 
behavior,  statcs,  liaviug  authority,  by  the  laws  of  the  United 
States,  to  take  cognizance  of  offences  against  the 
constitution  and  laws  thereof,  shall  respectively 
have  the  like  power  and  authority  to  hold  to  the 
security  of  the  peace,  and  for  good  behavior,  in 
cases  arising  under  the  constitution  and  laws  of 
the  United  States,  as  may  or  can  be  lawfully 
exercised  by  any  judge  or  justice  of  the  peace  of 
of  the  respective  states,  in  cases  cognizable  before 
them.     AcL  1798,  ch.  83. 


POWERS  IN  COMMON.  83 


ACT,  183Z 

TO    DELIVKR    VESSELS    TO    CLAIMANTS.  

I'liwcr  to 

In  any  cause  of  admiralty  and  maritime  juris-  ',;;|l,7irde- 
diction,  or  other  case  of  seizure,  depending  in  eV^-.'^'^nt 
any  court  of  the  United  States,  any  judge  of  the  M'j;*^^' 
said   court,  in   vacation,   shall   have   the   same 
power  and  authority  to  order  any  vessel,  or  cargo, 
or  other  property,  to  be  delivered  to  the  claimants, 
upon  bail  or  bond,  under  the  statute,  as  the  case 
may  be,  or  to  be  sold  when  ne(ressary,  as  the  said 
court  now  has  in  term  time,  and  to  appoint  ap- 
praisers and  exercise  every  other  incidental  power 
necessary  to  the  complete  execution  of  the  autho- 
rity herein  granted  ;  and  the  said  recognizance  of 
bail  or  bond,  under  such  order,  may  be  executed 
before  the  clerk,  upon  t'le  parties  producing  the 
certificate  of  the  collector  of  the  district,  of  the 
sufficiency  of  the  security  offered :  and  the  same 
proceedings  shall  be  had  in  case  of  said  order  of 
delivery,  or  of  sale,  as  are  now  had  in  like  cases, 
when  ordered  in  term  time ;  Proi'kkd,  that  upon 
every  such   application,  either  for  an  order  of 
delivery  or  of  sale,  the  collector  and  the  attorney 
of  the  district  shall  have  reasonable  notice  in 
cases  of  the  United  States,  and  the  party  or  coun- 
sel in  all  other  cases.     Act,  1832,  ch.  6G. 


84  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT.1S39.      "^O    ENTERTAIX    JURISDICTION    WHEN     ALL     THE    Dl^FEN- 

DANTS    MAY    NOT    BE    WITHIN    THE    DISTRICT. 
Courts 
may  pro- 
ceed when       'Whcro,  in  any   suit  at   law  or  in  equity,  (1) 

deieiitlaiits  '  •'  ^  i         J  ^   \    ^ 

are  not  all  commcnccd  in  any  court  of  the  United  States, 

111  the  uis-  "^ 

trict,  but     there  shall  be   several   defendants,   any  one  or 

decree  to 

bewiihout  more  of  whom  shall   not  be  inhabitants  of,  or 

prejudice 

to  such ;  found  within  the  district  where  the  suit  is  brought, 
or  shall  not  voluntarily  appear  thereto,  it  shall  be 
lawful  for  the  court  to  entertain  jurisdiction,  and 
proceed  to  the  trial  and  adjudication  of  such  suit 
between  the  parties  who  may  be  properly  before 
it;  but  the  judgment  or  decree  rendered  therein 
shall  not  conclude  or  prejudice  other  parties,  not 


(1)  The  act  of  1839  was  intended  tp  remove  the  many  diffi- 
culties arising  in  practice,  in  cases  of  law  and  equity,  under  the 
third  clause  of  the  1  llh  section  of  the  act  of  1789,  under  which 
it  was  necessary  to  join  defendants,  some  of  whom  were,  and 
some  of  whom  were  not,  inhabitants  of  the  district  in  which 
the  suit  was  brought :  and  it  aimed  to  produce  this  rcsidt,  by 
providing  that  the  persons  not  being  inhabitants,  or  not  found 
within  the  district,  may  either  not  be  joined  at  all  with  those 
who  were,  or  if  joined,  and  they  did  not  waive  their  personal 
exemption  by  a  voluntary  appearance,  the  court  could  go  on 
to  judgment  or  decree  against  the  parties  properly  before  it, 
as  if  the  others  had  not  been  joined. 

But  it  did  not  contemplate  a  change  in  the  jurisdiction  of  the 
court,  as  it  regards  the  character  of  the  parties  as  ])rescribed 
by  the  judiciary  act,  and  as  expounded  by  the  supreme  court; 
that  is,  that  each  of  the  plaintiffs  must  be  capable  of  suing,  and 
each  of  the  defendants  capable  of  being  sued.  JDa?i7c  of  VicJcs- 
hurgJi  vs.  Slocomh,  1 4  Pet.  GO,  65,  6G. 

See  also,  "  Rules  in  Equity,"  Rule  17,  and  note  to  the  same' 


POWERS  IN  COMMON. 


regularly  served  with  process,  or  not  volunlnrily   act,  i83o. 
appearing  to  answer;  and  the  non-joinder  of  par-  nonj-indcr 
ties  who  are  not  so  niliabilants,  or  lound  williin  ..t  aimtc- 
tlie  district,  shall  constiUite  no  malter  of  abate- 
ment or  other  objection  to  said  suit.     Acf,  1839, 
ch.  36,  §  1. 

TO    RF-COVRR    PECUXrARY    PICNALTI  F.S. 

All  pecuniary  penalties  and  forfeitures,  accru-    act^sso. 
ing  under  the  laws  of  the  United  States,  may  be   rccmiarj 

_  poipallies, 

sued  for  and  recovered  in  any  court  of  competent  ^vllero 

iiiiiy  lie 

juristliction  in  the  state  or  district  where  such  sucJior. 
pena'ties  or  forfeitures  have  accrued,  or  in  which 
the  olfender  or  oflenders  may  be  found.      Act^ 
1S39,  ch.  36,  §3. 


TO    REMIT    RIXOGNIZANCES. 

In  all  cases  (I)  of  recognizances  in  criminal    act.isco. 
causes,  taken   for,   or  in,  or  returnable  to,  the  Recogni. 


(1)  Tlic  ])ii\vor  which  ihc  courts  of  common  law  exercised 
over  recognizances  in  England,  may  be  exercised  by  the  United 
States.     U/tiicd  States  vs.  Fcctij,  1  Mar.  Dec.  2oo,  257. 

Independently  of  statute,  the  courts  of  England  exercise 
authority  over  recognizances.     Ihid.  255,  259. 

The  object  of  a  recognizance  is,  not  to  enrich  the  treasury, 
but  to  combine  the  administration  of  criminal  justice  with  the 
convenience  of  a  person  accused,  but  not  proved  guilty.  Ihid. 
259. 

An  action  of  debt  was  instituted  in  the;  district  court,  upon 
a  recognizance  entered  into  before  a  magistrate,  in  a  case  in 


86  JURISDICTION  OF  THE  FEDERAL  COURTS 

ACTV1S39  courts  of  the  United  States,  which  shall  be  for- 

wheumay  felted  bv  a  brcach  of  the  condition  thereofj  the 

bf  remit- 
ted, said  court  for  or  in  which  the  same  shall  be  so 


which  a  party  was  charged  with  having  beaten  a  boy  so  as  to 
cause  liis  death,  on  board  a  merchant  vessel  of  the  United 
States.  The  recognizance  was  as  folh)ws  :  "  July  22d.  United 
States  vs.  Jasper.  James  Jasper  and  S.  Dillingham,  each  tent 
in  8300  for  the  appearance  of  said  Jasper."  The  United  States 
had  judgment  below,  and  the  cause  was  brought  by  writ  of 
error,  into  the  circuit  court,  upon  objections,  mainly  connected 
with  the  recognizance. 

Held  :  In  a  recognizance,  the  material  parts  of  the  obligation 
and  the  condition  should  be  set  forth  in  the  body  of  it,  so  as  tcj 
admit  of  extension,  consistently  with  the  terms  of  it.  DUUng- 
ham  vs.  United  Slates,  2  Wash.  422. 

It  is  essential  to  a  breach  of  a  recognizance,  that  the  party 
who  is  to  appear,  should  be  solemny  called  before  his  default ; 
and  in  an  action  on  the  recognizance,  it  should  be  clearly  pro- 
ved that  the  party  was  called  and  warned,  and  neglected  to 
appear.  Ihid. 

If  the  non-appearance  of  the  recognizor  can  bo  proved  by 
parol  evidence  —  Query?     Ihid. 

A  material  variance  between  the  warrant  and  the  recogni- 
zance set  forth  in  the  declaration,  and  that  given  in  evidence, 
is  fatal.     Ihid. 

Where  an  individual  is  charged  with  the  commission  of  a 
criminal  offence,  and  enters  into  a  i-ecognizance,  conditioned 
to  appear  at  a  given  day,  and  undergo  his  trial,  which  recog- 
nizance is  forfeited  by  the  failure  of  the  party  to  appear  and 
submit  himself  to  the  law ;  but  the  accused  appears  at  the 
succeedinfT  term  of  the  court  in  which  the  recognizance  is 
filed,  has  full  power  to  suspend  (or  discharge  ?)  it,  for  good 
cause  shown  by  the  accused,  why  he  did  not  comply  with  the 
condition  of  the  recognizance.  United  States  vs.  Feely,  1  Mar. 
Dec.  255. 


POWERS  IN  COMMON.  87 


taken,  or  to  which  the  same  shall  be  returnable,  *'1^''^ 
shall  have  authority,  in  their  discretion,  to  remit 
the  whole  or  a  part  of  the  penalty,  wherever  it 
shall  appear  to  the  court  that  there  has  been  no 
wilful  default  of  the  parties,  and  that  a  trial  can, 
notwithstanding,  be  had  in  the  cause,  and  that 
public  justice  does  not  otherwise  require  the  same 
penalty  to  be  exacted  or  enforced.  Act,  1839, 
c/i,  36,  §  6. 

TO    TAKE    RECOGNIZA^'CES    FROM    WITNESSES. 

In  all  hearings  before  any  justice  or  judge  of  ^^^ 
the  United  States,  or  any  commissioner,  under  R'^cogni- 

"'  zances  ot 

and  by  virtue  of  the  33d  section  of  the  act  of  wi^"!'''*'''' 
1789,  ch.  20,  it  shall  be  lawful  for  such  iustice,  u^i  cases 

^  who  muy 

judge,  or  commissioner,  where  the  crime  or  of-  'a^®- 
fence  is  charged  to  have  been  committed  on 
the  high  seas,  or  elsewhere  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States, 
in  his  discretion,  to  require  a  recognizance  of  any 
witnesses  produced  in  behalf  of  the  accused, 
with  such  surety  or  sureties  as  he  may  judge 
necessar}%  as  well  as  in  behalf  of  the  United 
States,  for  their  appearing  and  giving  testimony, 
at  the  trial  of  the  cause,  whose  testimony,  in  his 
opinion,  is  important  for  the  purposes  of  justice 
at  the  trial  of  the  cause,  and  is  in  danger  of  being 
otherwise  lost.     Act,  1842,  ch,  188,  §  2. 


88  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1789. 


ISSUES    OF    FACT.    HOW    TRIED. 


fact  when        Tlic  trial  of  issucs  of  fact,(l)  in  the  dhtrki  courts, 
in  all  causes  except  civil  causes  of  admiralty  and 


(1)  Only  a  single  case  Las  over  been  tried  by  a  jury  before 
the  supreme  court,  and  that  was  only  a  feigned  issue,  xi-^on  the 
determination  of  which  no  questions  of  importance  were  raised, 
the  trial  was  in  the  case  of  Brailsford  et  al.  vs.  The  State  of 
Georgia,  3  Dall.  1 ;   1  Cond.  8. 

The  equity  jurisdiction  of  the  courts  of  the  United  States, 
is  independent  of  the  local  law  of  any  stale,  and  is  the  same  in 
nature  and  extent  as  the  equity  jurisdiction  of  England,  from 
which  it  is  derived.  Therefore,  it  is  no  objection  to  its  juris- 
diction, that  there  is  a  remedy  under  the  local  law.  Gordon  et 
al.  vs.  liohart  et  al.  2  Sumner,  401. 

But  this  jurisdiction  is  special,  limited  and  defined,  not  as 
in  England,  where  it  depends  on  usage.  Baker  vs.  Davis, 
Baldwin,  394,  407. 

Whenever  a  court  of  law  is  competent  to  take  cognizance 
of  a  right,  and  has  power  to  proceed  to  a  final  judgment, 
which  affords  a  remedy,  plain,  adequate  and  complete,  without 
the  aid  of  a  court  of  equity,  the  plaintiff*  must  proceed  at  law, 
because  the  defendant  has  a  constitutional  light  of  trial  by 
jury.  If  the  right  is  only  an  equitable  one,  or,  if  legal,  the 
remedy  is  only  equitable,  or  both  legal  and  equitable,  partaking 
of  the  character  of  both,  and  a  court  of  law  is  unable  to  aff()r(3 
a  remedy,  according  to  its  old  and  settled  proceedings,  com- 
mensurate with  the  right,  the  suit  for  its  assertion  may  be  in 
equity.     Baker  vs.  Biddle,  Baldwin,  394,  405. 

The  courts  can  not  sustain  a  suit  at  law  on  an  equitable 
right  only,  adjudge  a  remedy  appropriate  only  to  equity,  or 
sustain  a  suit  in  equity  on  a  mere  legal  right,  for  which  the  law 
affords  a  complete  remedy.     Ibid.  407. 

The  right  may  bo  clear  at  law,  but  if  the  remedy  is  doubtful, 
difficult,  not  adequate  to  the  object,  not  so  complete  as  in  equity. 


POWERS  IN  COMMON.  89 

maritime  jurisdiction;  and  in  the  cirniit  rourf.!^,    a<:t.\:so. 
in  all  suits  except  those  in  equity  and  of  admi-   t., hutricd 
ralty   and    maritime  jurisdiction;    and    in    the    '^'^J'"' ' 
supreme  coiirf^  in  all   actions  at  law  against  citi- 
zens of  the  United  States,  shall  be  by  jury.     Ac/, 
1789,  c/i.  20,  §§  9,  12,  13. 


not  so  efficient  and  practicable  to  the  ends  of  justice  and  its 
prompt  administration,  cciuity  may  attach.     Ibid.  408. 

A  defendant  is  entitled  to  a  jury  trial  on  an  issue  of  fact  in 
a  suit  at  common  law,  and  to  his  oath  in  his  answer  to  a  hill  in 
equity,  of  which  he  can  not  he  deprived  at  the  option  of  the 
plaintiff.     Ibid.  407. 

An  information  for  alleged  exportation  of  arms  under  the 
act  of  1794,  is  a  case  of  admiralty  and  maritime  jurisdiction. 
It  is  also  a  civil  cause,  and  triable  without  the  intervention  of 
a  jury.  United  Siatcs  vs.  La  Vengeance,  3  Dall.  297  ;  1  Cond. 
132. 

In  cases  of  seizures  made  on  land,  the  district  courts  proceed 
as  courts  of  common  law,  and  the  trial  of  issues  of  fact  is  by 
a  jury ;  in  seizures  on  water,  it  proceeds  as  an  instance  court, 
and  the  trial  is  to  be  by  the  court.  The  jurisdictions  and  pro- 
ceedings are  distinct.  I'/ic  Sarah,  8  Whea.  391  ;  5  Cond.  472. 
"Civil  causes  of  admiralty  and  maritime  jurisdiction,"  com- 
prehend all  maritime  contracts;  contracts  relating  to  the  navi- 
gation, business  or  commerce  of  the  sea;  and  contracts  for 
marilimc  service  in  building,  repairing,  supplying  and  navi- 
gating ships.  Daris  vs.  A  new  Brig,  Gilpin,  471,  477,  quoting 
Dc  Loriu  vs.  Loif,  2  Gall.  47'),  and  T/ie  Jerusalem,  2  Gall. 
347.  But  sec  Bains  vs.  Sc/tr.  James  and,  Catharine,  Baldwin, 
544,  .5GS. 

See  also,  Constitutional  Provisions,  •'  Trial  by  Jury,"  page 
17,  and  notes;  and  Powers  in  Common,  "Ecjuity  Jurisdiction," 
ante,  page  38,  and  notes. 


90  JURISDICTION  OF  THE  FEDERAL  COURTS. 


Const  U.S.  JUDGES:    TERM    OF    OFFICE    AND    SALARY. 

Art.  111. 

Judges.  The  judges,  toth  of  the  supreme  and  inferior 

office "nd    courts,  shcill  hold  their  offices  during  good  beha- 

i^i^yo.    ^JQj..  ^j^jj  shall,  at  stated  times,  receive  for  their 

services,  a   compensation,   which   shall   not  be 

diminished  during  their   continuance  in  office. 

Const.  U.  S.,  Art.  3,  §  1. 


JUDGES  :    OATH    OF    OFFICE. 

ACT.  1789.  The  justices  of  the  supreme  court,  and  the  dis- 
.Tudges,  trict  judges,  before  they  proceed  to  execute  the 
gffice!  duties  of  their  respective  offices,  shall  take  the 
following  oath  or  affirmation,  to  wit :  "  I,  A.  B., 
do  solemnly  swear  or  affirm,  that  I  will  adminis- 
ter justice  without  respect  to  persons,  and  do 
equal  right  to  the  poor  and  to  the  rich,  and  that 
I  will  faithfully  and  impartially  discharge  and 

perform  all  the  duties  incumbent  on  me  as , 

according  to  the  best  of  my  abilities  and  under- 
standing, agreeably  to  the  constitution  and  laws 
of  the  United  States.     So  help  me  God."     Actf 
1789,  ch.  20,  §  8. 
ACT,  isi?.        It  shall  not  be  lawful  for  any  judge,  appointed 
Judges,      under  the  authority  of  the  United  States,  to  exer- 
pmciisi      CISC  the  profession  or  employment  of  counsel  or 

law.  1    •  1 

attorney,  or  to  be  engaged  m  the  practice  of  the 
law.  And  any  person  oUbnding  against  the  in- 
junction or  prohibition  of  this  act,  shall  be  deemed 
guilty  of  a  high  misdemeanor.     Act,  1812,  ch.  6. 


POWERS  IN  COMMON.  91 


CLERKS    OF    COURTS.  ACT.  17fl0. 

The  supreme  court,  (1)  and  the  district  courts  JjJ^""^!^',;^'/ 
shall  have  power  to  appoint  clerks  for  their  re-  ^^ZS 
spective  courts ;  and  the  clerks  for  each  district 
court  shall  be  clerk  also  of  the  circuit  court  in 
such  district.     Act,  1789,  ch.  20,  §  7. 


(1)  The  appointment  of  clerks  of  courts  properly  belongs  to 
courts  of  law  ;  a  clerk  of  the  court  being  one  of  those  officers 
contemplated  by  the  provision  of  the  constitution,  giving  to 
congress  the  power  to  vest  the  appointment  of  inferior  officers 
as  they  think  proper.  And  the  appointing  power  was  no  doubt 
intended  to  be  exercised  by  the  department  of  the  govern- 
ment to  which  the  officer  to  be  appointed  most  appropriately 
belonged.     Matter  of  Hcnncn,  13  Peters,  230. 

It  was  not  the  intention  of  the  constitution  that  those  offices, 
denominated  inferior  offices,  should  be  held  during  life.  In 
the  absence  of  legal  provision  as  to  removal  from  them,  the 
power  of  removal  must  be  considered  as  incident  to  the  power 
of  appointment.     Ibid. 

The  law  giving  the  power  of  appointment  of  clerks  to  the 
courts,  does  not  prescribe  any  form  in  which  this  shall  he  done. 
The  power  vested  in  the  court  is  a  continuing  power,  and  the 
mere  appointment  of  a  successor  would,  per  sc,  be  a  removal 
of  the  prior  incumbent ;  so  far,  at  least,  as  his  rights  were 
concerned.     Ibid, 

The  supreme  court  can  have  no  control  over  the  appoint- 
ment or  removal  of  a  clerk  of  an  inferior  court ;  or  entertain 
any  incpiiry  into  the  gi-ounds  of  removal.  If  the  judge  is 
chargeable  with  any  abuse  of  his  power,  the  supreme  court  is 
not  the  Irilmnal  to  which  he  is  answerable.     Ibid. 


92  JURISDICTION  OF  THE  FEDERAL  COURTS. 

AOTus-9.  All  the  circuit  courts  of  the  United  States  shall 
have  the  appointment  of  their  own  clerks;  and 
in  case  of  a  disagreement  between  the  jiulges, 
the  appointment  shall  be  made  by  the  presiding 
judge  of  the  court.     Act,  1839,  ch.  36,  §  2. 


JURISDICTION 


FEDERAL  COURTS  OF  THE  UNITED  STATES. 


SUPREME    COURT. 


SUPREME    COURT 

ORGANIZATION  AND  ADJOURNMENT  OP. 


The  supreme  court  consists  of  a  chief  justice  SupremP 

■*■  court  cou 

and  eight  associate  justices,  any  five  of  whom  sists  ot 
shall  constitute  a  quorum.(a)     The  associate  jus-  judges-, 
tices  take  precedence  according  to  the  date  of 
their  commissions;  or  where  the  commissions  of  Jj^ceof; 
any  two  of  them  bear  date  the  same  day,  accord- 
ing to  their  respective  ages.(6) 

It  holds  annually  one  session,  at  the  city  of  session  oh 
Washington,  commencing  on  the  first  Monday  of 
Deceiiibcr.(r)  If  a  quorum  shall  not  attend  on 
the  appointed  day,  such  justice  or  justices,  as  may 
attend,  may  adjourn  the  court  from  day  to  day, 
for  twenty  days;  and  if  a  quorum  does  not  con- 
vene by  the  expiration  of  that  time,  the  business 
of  the  court  shall  be  continued  over  to  the  next 


(a)  Act  1837,  ch.  34,  §  1.     {h)  Act  1789,  ch.  20,  §  1.     {c)  Act 
1844,  ch.  96,  §  1. 


96  JURISDICTION  OF  THE  FEDERAL  COURTS. 


regular  session.  But,  any  one  or  more  of  the 
justices  so  attending,  sliall  have  power  to  make 
all  necessary  orders  touching  any  suit,  action, 
writ  of  error,  process,  pleadings  or  proceedings, 
returned  to  the  said  court,  or  depending  therein, 
preparatory  to  the  hearing,  trial  or  decision  of 
such  action,  suit,  appeal,  writ  of  error,  process, 
Acijmirn-  plcadlugs  or  procccd ings.(f/)  After  a  quorum  has 
""'"'''*■  once  been  formed,  any  less  number  may  adjourn 
the  court  from  day  to  day,  until  a  quorum  shall 
extend,  and  when  expedient  and  proper,  may 
adjourn  the  same  without  day.(r) 

AVhenever,  in  the  opinion  of  the  chief  justice, 
or  of  the  senior  associate  justice,  a  contagious 
sickness  shall  render  it  hazardous  to  hold  a  ses- 
sion of  this  court  at  the  seat  of  government,  it 
may  be  adjourned  to  such  other  place  within  the 
same,  or  an  adjoining  district,  as  such  justice  may 
deem  convenient.(/) 
fa'dgZ'^  The  salary  of  the  chief  justice  is  $5,000  per 
annum  ;  that  of  the  associate  justices,  $4,500.(^') 
For  list  of  chief  justices  and  associate  justices, 
see  Appendix. 


(rZ)  Act  1829,  ch.  12,  §  1.  Act  1802,  ch.  31,  §  1.  {e)  Act 
1829,  ch.  12,  §  2.  (/)  Act  1799,  ch.  12,  §  7.  {g)  Act  1819, 
ch.  27. 


JURISDICTION 

OF     THK 

FEDERAL   COURTS. 


SUPREME    COURT. 


ORIGINAL    JURISDICTION. 

In  all  cases  (1)  aflecting  ambassadors,  other  ^Ibt'iu 
public  ministers  and  consuls,  and  those  in  which  origirmi 

jurisdic- 
. tioa. 

(1)  Whether  the  jurisdiction  of  the  supreme  court  is  not  only 
oriiriual  but  exclubive  in  "  cases  aficctinfr  ambassadors,  other 
public  ministers  and  consuls,"  according  to  the  true  construc- 
tion of  the  second  section  of  the  third  article  of  the  constitu- 
tion. United  Sf cites  vs.  Ortega,  11  Whoa.  467;  6  Cond.  394. 
Cohens  vs.  Virghua,  G  Whea.  2G4 ;  5  Cond.  90,  108.  United 
States  vs.  Ravara,  2  Dall.  297. 

In  the  last  case  which  came  before  the  circuit  court  for  the 
district  of  Pennsylvania,  it  was  held  that  congi'ess  might  vest  a 
concurrent  jurisdiction  in  such  cases  in  other  courts. 

But  in  tlie  case  first  above  cited,  the  supreme  court  regarded 
the  (juestion  as  still  suh  judice  —  still  undecided. 

The  power  of  the  supreme  court  to  entertain  original  juris- 
diction in  suits  where  a  state  is  a  party,  was  maintained  in  the 
case  of  Chisholm  vs.  The  State  nf  Georgia,  2  Dall.  419  ;  1  Cond. 
7 


98  JURTSDICTTON  OF  THE  FEDERAL  COURTS. 


^r"iii.^'  ^  state  shall  be  a  party,  the  supreme  court  shall 
have  original  jurisdiction.  Const,  U.  S.^  Art.  3, 
•Sees.  1  and  2. 

ORIGINAL    AND    EXCLUSIVE    JURISDICTION. 

ACTU789.        fi^Q  supreme  court  (1)  shall  have  exclusive  juris- 
ori-inai     diction  of  all   controversies   of  a   civil   nature, 

and  excla- 

«ive  juris-    where  a  state  is  a  party,  except  between  a  state 

diction.  1         J'  1 

6  ;  and  the  11th  amentlment  of  the  constitution  was  adopted  in 
consequence  of  the  decision  in  that  case,  by  which  it  was  held 
that  a  state  was  suahlc. 

In  respect  to  that  class  of  cases,  in  which  a  state  is  sued  by 
^foreign  state,  in  only  a  single  case  has  the  question  been 
raised.  But  the  point  was  not  decided,  because  the  plaintiffs 
in  that  caee  were  held  not  to  constitute  xi  foreign  state.  Chero- 
kee Nation  of  Indians  vs.  State  of  Georgia,  5  Pet.  1. 

See  also,  "  Constitutional  Provisions,"  notes  5,  6. 

The  supreme  court  is  one  of  limited  and  special  original 
jurisdiction;  and  its  action  must  be  confined  to  the  particular 
cases,  controversies  and  parties,  over  which  the  constitution 
and  laws  have  authorized  it  to  act ;  any  proceeding  without 
the  limits  prescribed,  is  coram  nan  judice,  and  its  action  a  nul- 
lity. Voorheesxs.  Bank  United  States,  10  Pet.  440,  47  J.  S.  C. 
4  Russ.  415.  And  whether  the  want  or  excess  of  power  is 
objected  by  a  party,  or  is  apparent  to  the  court,  it  must  sur- 
cease its  action,  or  proceed  extra-judicially.  Rhode-Island  vs. 
Massachusetts,  12  Pet.  G57,  720. 

Consent  of  parties  can  not  confer  jurisdiction  upon  the 
supreme  court.  Mills  vs.  Brown,  16  Peters,  525.  Kenncdi/  et 
als.  vs.  Georgia  State  Bank,  8  Howard,  Gil. 

(1)  Congress  has  passed  no  law  for  the  special  purpose  of 
prescribing  the  mode  of  proceeding  in  suits  instituted  against 
a  state,  or  in  any  suit  in  which  the  supreme  court  is  to  exercise 


SUPREME  COURT.  99 


and  its  citizens;  and  except  also  between  a  state    ac-t^:*. 
and  citizens  of  other  stati's,  or  aliens,  in  which 
latter  Ccise  it  shall  have  orli^liiul  but,  not  exclusive 
jurisdiction ;  and  shall  have  (2)  cxd us Ivdij  all  such 


tlic  oiigiiKil  jurisdiction  conferred  by  the  conslilu'Lion.     New- 
Jersey  vs.  New-  Yorh,  5  Pel.  2S4. 

A  case  whicli  belongs  to  the  jurisdiction  of  the  supremo 
court,  on  account  of  the  interest  a  stale  has  in  the  controver-sy, 
must  be  a  case  in  which  a  state,  either  nominally  or  substan- 
tially, is  a  party.  It  is  not  sufficient  that  a  state  may  be  con- 
sequentially affected.  Fowler  vs.  Miller,  3  Dall.  411 ;  1  Coi;d- 
189. 

But  if  the  claims  of  a  state  may  be  ultimately  affected  by 
the  decision  of  a  cause,  though  the  state  may  not  necessarily 
be  a  defendant,  the  court  is  bound  to  exercise  jurisdiction^ 
Ujiifcd  Slates  vs.  Judge  Peters,  5  Cra.  115:  2  Cond.  202. 

As  to  the  jurisdiction  and  modes  of  proceeding  where  a  state 
is  a  parly  ;  sec  New-Jersey  vs.  New- York,  5  Pet.  2S4.  Georgia 
vs.  Jirai/s/orJ,  3  Dull.  1  ;  1  Cond.  8.  Chishohn  vs.  Georgia^ 
2  Dall.  419;  1  Cond.  G;  2  Cond.  App.  New- York  vs.  Con- 
necticut, 4  Dall.  3  ;  1  Cond.  203.  Grayson  vs.  Virginia,  3  Dall. 
320;  1  Cond.  141.  Rhode- Isla?id  vs.  Massachusetts,  12  Pet. 
657. 

See  also,  3  Story's  Com.  Const.,  §§  1G52  to  1G57 ;  and  notes 
5,  G  and  7,  to  "  Constitutional  Provisions." 

(2)  A  secretary  of  legation  is  entitled  to  the  protcclion  of 
the  law  of  nations,  against  any  civil  or  criminal  prosecution. 
Ex  parte  Cabrera,  1  Wash.  232. 

An  attache  to  a  foreign  legation  is  a  public  minister  within 
the  act  of  congress.      United  States  vs.  Earner,  l.'ald.  234. 

In  an  action  in  a  state  court  against  a  consul,  if  the  slate 
court  is  cognizant  of  his  official  diplomatic  character,  even 
though  it  is  not  apparent  from  the  record  itself,  the  stale  juris- 
diction can  not  be  maintained.     Davis  vs.  Packard,  G  Pet.  41. 


100  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1739  jurisdiction  of  suits  or  proceedings  ajains-^  ambas- 
sadors, or  other  public  ministers,  or  their  domes- 
tic, or  domestic  servants,  as  a  court  of  Jaw  can 
have  or  exercise  consistently  witli  the  hiw  of 
nations,  and  orii^lnal  bid  not,  c.rc/itsii;/j  jurisdiction 
of  all  suits  brought  by  ambassadors,  or  other  public 


An  iiulictmcnt,  under  the  crimes  act  of  1790,  cli.  9,  §  28, 
for  infracting  tlie  law  of  nations,  by  offering  violence  to  the 
person  of  a  foi'eign  ministei',  is  not  a  case  afi'cciing  •'  ambas- 
satlors,  otlier  public  ministers  and  consuls,"  within  the  meaning 
of  the  constilution.  It  is  a  case  which  affects  the  United  States, 
and  the  person  whom  they  seek  to  punish  ;  but  one  in  which 
the  minister  himself,  although  he  was  the  person  injured  by 
the  assault,  has  no  concern,  either  in  the  event  of  the  prosecu- 
tion, or  in  the  costs  attending  it. 

The  circuit  court,  therefore,  may  have  jurisdiction  of  such 
an  oflcnco,  under  the  11th  section  of  the  judiciary  act.  United 
States  vs.  Ortega,  11  Whea.  4G7 ;  6  Cond.  394.  This  case 
came  up  from  the  circuit  court  of  Pennsylania,  and  is  reported 
in  4  Wash.  531. 

It  is  no  defence  upon  an  indictment  for  an  assault  and  bat- 
tei'y,  that  the  defendant  was  ignorant  of  the  public  character 
of  the  minister.  United  States  vs.  Ortega,  4  Wash.  531,  537. 
United  States  vs.  Liddle,  2  Wash.  205,  210.  United  States  vs. 
Bcnner,  1  Bald.  234,  240.  But  if  a  foreign  minister  commits 
the  first  assault,  he  forfeits  his  immunity  so  far  as  to  excuse 
the  defendant  for  returning  it.  United  States  vs.  Ortega,  4 
Wash.  531.      United  States  vs.  Benner,  Baldwin,  234. 

But  to  constitute  an  assault  against  the  house  of  a  foreign 
minister  an  offence  against  the  law  of  nations,  the  defendant 
must  be  aware  that  it  is  the  domicil  of  the  minister;  or  other- 
wise it  is  merely  an  offence  against  the  municipal  laws  of  the 
state  where  the  minister  resides.  United  States  vs.  Hand,  2 
Wash.  435,  439. 


SUrREME  COURT.  101 


ministers,  or  in  whicli  a  consul  or  vie  c  consul,    AcrjTBa. 
shall  be  a  party.     Acfy  1789,  ch.  20,  §  13. 


PROimU  riON MANDAMUS. 


The  supreme  court  ( I )  shall  have  power  to  issue    actvithx 
writs  of  ])rohibkion  to  the   district  courts,  when  fowcr  :o 
proceedings  as  courts  of  admiralty  and  marilimc  ''^^^'JJ'/ 
jurisdiction,  and  writs  of  mttmia/yi</s,(2)  in  cases  woui.uJ 


Proltibltion. 

(1)  A  writ  o^  prohibition  will  isMic  from  lliis  court  to  a  dis- 
trict judge,  to  rcslraiii  furtlier  proceedings  on  a  libel,  wlicro 
the  district  court  has  no  jurisdiction.  United  States  vs.  Piters, 
3  Dall.  121;   1  Cond.  GO. 

The  common  law  is  the  standard  by  which  to  ascertain  what 
arc  proper  cases  for  a  j)>'ohil>ition  to  a  court  of  admiralty,  and 
not  the  civil  law  ;  still  less  those  principles  on  which  the  admi- 
ralty courts  in  the  time  of  Jac.  1,  protested  against  the  right  of 
the  King's  Bench  to  grant  prohibitions.  Bains  vs.  Schr.  James 
aJid  Catharine,  Baldwin,  514;  5G3. 

Mandamus. 

(2)  The  authority  given  to  the  supreme  court  to  issue  writs 
of  mandamus  to  public  officers,  appears  not  to  be  warranted 
by  the  constitution.  Marhunj  \i.  Madison,  iCra.  137;  1  Cond. 
2G7,  2S3. 

For  a  mandamus  to  a  public  officer  is  an  cxeicisc  of  original 
juristliclion  ;  and  is  not  provided  llir  by  the  constitution.  Ex 
parte  Crane,  .O  Pet.  190,  193. 

'J'ho  supreme  court  will  not  grant  a  mandamus  to  compel  a 
district  judge  to  grant  an  application  resting  in  his  discretion. 
Ex  jHutc  Roberts,  G  Pet.  2IG.  Ex  iiartc  Davevjort,  G  Pet. 
6G1.  Ex  parte  Bradstrcet,  7  Pet.  G37.  Bank  of  Colmnbia  vs. 
Sweeny,  1  Pet.  5G7. 


102  JUEtlSDICTION  OF  THE  FEDERAL  COURTS. 


ACT. 


]_^-    warranted  by  tlie  principles  and  usages  of  law,  to 
manda-       any  courts  appointed,  or  persons  holding  office, 
under  the  authority  of  the  United  States.     Act, 
1789,  ch.  20,  §  13. 


UlUA 


APPELLATE    JURISDICTION. 


Co.vs',  r.  S. 
Aarlll. 


Appc  llati 
jnri^dic- 


In  all  cases  (I)   affecting  ambassadors,  other 
public  ministers  and  consuls,  and  those  in  which 


tioD  gene-         jj       •    ^^jjj  ^^  compel   a  iu(l2:e  to  execute  a  S(*nteiice  pro- 
rail  jf,  ami  J  J       O  I 

nounccd  by  liim.  Unt/.cd  Slates  vs.  Peters,  5  Cra.  115  ;  2  Cond. 
202. 

Tliis  writ  will  lie  to  the  circuit  court  requiring  it  to  sign  a 
bill  of  exceptions.  Ex  parte  Crane,  5  Pet.  190,  193.  But  not 
to  compel  him  to  sign  a  bill  of  exceptions,  which  he  does  not 
conceive  to  be  proper,  or  which  is  not  correct.  Ex  parte  Brad- 
street,  4  Pet.  102.  Or  to  a  judge,  lo  sign  a  judgment.  Life 
and  Fire  Ins.  Co.,  New- York  vs.  Wilson,  8  Pclcrs,  291. 

Writ  of  mandamus  will  lie  in  the  case  of  the  removal  or 
euspensiou  of  an  attorney  in  the  inferior  courts,  but  only  when 
the  conduct  of  the  court  below  was  irregular,  or  lliigranlly 
improper.     Ex  parte  Burr,  9  Whca.  529;  5  Cond.  GGO. 

And  also  to  stay  proceedings  in  the  court  below,  in  a  case 
where  the  United  States  is  a  party.  Livingston  vs.  Dargcnois, 
7  Cra.  577.     2  Cond.  G18. 

See  al?o,  Cvl.  Ins.  Co.  vs.  Wlieclrigid,  7  Wliea.  534  ;  5  Cond. 
334.  United  States  vs.  Laicrcncc,  3  Dall.  42;  1  Cond.  19 
Parker  vs.  Judges  of  Cir.  Court  of  Maryland,  12  Whea.  561  ; 
G  Cond.  044.  Bank  of  Columbia  vs.  Sweeny,  1  Pet.  507.  Ex 
parte  Roberts,  G  Peters,  210.  Ex  parte  Davenport,  6  Peters, 
GOl.  Ex  parte  Bradstrcet,  G  Peters,  774  ;  S.  C.  7  Peters,  034  ; 
S.  C.  8  Peters,  5SS.     Ex  parte  Story,  12  Peters,  339. 

Sec  also,  "Powers  in  Common,"   title  Mandamus. 

(1)  The  api)ellate  jurisdiction  given  to  the  supreme  court  by 
the  constitution  (Art.  3,  Sec.  3)  is,  '•  with  such  exceptions  and 


SUPREME  COURT.  103 


a  state  shall  be  a  party,  the  supreme  court  shall  ^■";';; ,",;'» 
have  ori^'uial  iurls^diction.     In  all  the  other  cases       — 

-^  ''  .  general 

before  mentioned  —  all  cases  in  law  and  equity,  luiere^ 
arising  under  the  constitution,  the  laws  ot  the 
United  States,  and  treaties  made,  or  which  shall 
be  made,  under  their  authority  ;  all  cases  of  admi- 
ralty and  maritime  jurisdiction;  controversies  in 


under  such  regulations  as  the  congress  shall  make."  If  con- 
gress has  provided  no  rule  to  regulate  such  proceedings,  the 
court  can  not  exercise  the  appellate  jurisdiction ;  and  if  the 
rule  is  provided,  it  can  not  be  departed  from.  Wiscart  vs. 
Dauchy,  3  Dull.  321  ;   1  Cond.  144,  146. 

The  supreme  court  has  no  power  to  review  its  own  decisions, 
whether  at  law  or  equity.  Washi-ngton  Bridge  Co.  vs.  Stewart, 
3  Howard,  413. 

There  is  no  mode  pointed  out  by  law,  in  which  an  erroneous 
judi'^ment  or  decree  of  the  supreme  court  can  be  reviewed  or 
reversed,  cither  in  that  or  any  other  court.  Martin  vs.  Hunter's 
Lessee,  1  Whea.  3U4  ;  3  Cond.  550.  Browder  vs.  McArthur, 
7  Whea.  58  ;  5  Cond.  23G.   Ex  parte  Sihbald,  12  Peters,  492. 

Nor  docs  the  supreme  court  possess  appellate  jurisdiction  in 
any  form,  from  the  circuit  courts  in  criminal  cases ;  no  such 
power  having  been  confided  to  it  by  congress.  United  States 
vs.  Moore,  3  Cra.  159  ;  1  Cond.  480.  Ex  2}arte  Kearney,  7 
Whea.  38  ;  5  Cond.  225.  Ex  parte  Wat/cins,  3  Pet.  193.  S.  C. 
7  Pet.  568.     United  States  vs.  Gilbert,  2  Sum.  19. 

The  only  mode  contemplated  by  the  laws  of  the  United 
States  to  revise  the  opinions  of  the  judges  of  the  circuit  court 
in  criminal  cases  is,  when  the  judges  are  divided  in  opinion  at 
tlie  trial,  and  then  the  point  of  division  may  be  certified  to  the 
supreme  court,  under  the  act  of  1802,  ch.  31,  §  6.  United 
States  vs.  Gibtrt,  2  Sum.  19,  104. 

Sec  also,  note  6,  page  12,  "Constitutional  Provisions,"  and 
the  note  followinsr. 


104  JURISDICTION  OF  THE  FEDERAL  COURTS. 

^/ut'ih.'^  which  the  United  States  shall  he  n  party;  con- 
"~  troversies  between  citizens  of  different  states; 
controversies  between  citizens  of  the  same  state 
claiming  lands  under  grants  of  different  states  — 
the  supreme  court  shall  have  f/^)/>c//a/e  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions, 
and  under  such  regulations,  as  the  congress  shall 
make.      Const,  Art.  3,  §  2. 

ACT.17S9.  The  supreme  court  shall  also  have  appellate 
jurisdiction  from  the  circuit  courts,  and  courts  of 
the  several  states  in  the  cases  hereinafter  specially 
provided  for.     Act,  1789,  ch.  20,  §  13. 

FROM    CIIICUIT    COUIITS  :    BY    WRIT    OF    ERROR. 

ACT.  1789.        Final  judgments  and  dtxrecs  ( 1 )  m  civil  actions  and 
Writ  of      suits  in  equity,  in  a  circuit  court,  brought  there  by 

error 

when  will ^ — 

(1)  As  to  the  statement  of  the  case,  in  causes  of  equity  and 
of  admiralty  jurisdiction,  required  to  be  furnished  by  the  cir- 
cuit court,  and  wliicli  goes  up  with  the  record,  sec  *'  Circuit 
Court,"  postca. 

Mailer  in  Dispute. 

The  jurisdiction  of  this  court  depends  on  the  sum  or 
value  in  dispute  between  the  parties,  as  the  case  stands  upon 
the  writ  of  error  in  this  court ;  not  on  the  sum  which  was  in 
dispute  in  the  circuit  court,  i.  c.  the  amount  mentioned  in  the 
declaration.  Smith  vs.  Iloncy,  3  Pet.  4G0  ;  Gordon  vs  Ogdcn, 
3  Pet.  33,  35,  citing  and  approving  Wise  vs.  Columlnan  Turn- 
pilcc  Company,  7  Cra.  276;  2  Cond.  489;  overruling  Witson 
vs.  Daniel,  3  Dall.  401 ;  1  Cond.  185. 

Where  the  demand  is  not  for  money,  and  the  nature  of  the 
action  docs  not  require  the  value  of  ihc  thing  to  be  staled  in 


SUPREME  COURT.  105 


orij^inal  process,  or  removed  there  from  tlic  courts   ac"|^"69- 
of  the  several  states,  or  removed  there  by  appeal  I'c;  ""d 

uniount 

from  a  district  court  where  the  matter  in  dispute  iK-'cesarj 

the  declaralion,  tho  practice  of  the  courts  lias  been  to  allow  the 
value  to  be  given  in  evidence.    Ex  parfc  Bradstrcit,  7  Pet.  G34. 

In  llic  case  of  difrcrent  libels  by  did'erent  seamen,  each  of 
vvliom  recovered  less  than  two  tlxjusand  dollais,  tliougli  the 
aggregate  amounted  to  over  thirty-lwo  thousand  dolhirs,  on 
appeal  from  the  circuit  coui  t  on  such  separate  decrees,  held 
that  the  court  had  no  jurisdiction,  as  the  controversy  in  each 
case  was  less  than  two  thousand  dollars.  Oliver  vs.  Alexander, 
6  Pet.  143,  150. 

Tlic  words  "matter  in  dispute"  seem  appropriate  to  civil 
causes.  J3ut  in  criminal  cases,  the  question  is  the  guilt  or  inno- 
cence of  the  accused.  United  States  vs.  Moore,  3  Cra.  159  ;  1 
Cond.  480,  482.  But  see,  United  States  vs.  La  Vengeanec,  3 
Dalh  297;  1  Cond.  132;  from  which  it  may  be  infcired,  that 
in  criminal  cases  the  judgment  of  the  inferior  court  is  final. 

Tlic  onvs  probandi  of  showing  that  the  amount  in  conliover- 
sy  is  sufFuient  to  sustain  the  jurisdiction  of  the  court,  is  upon 
the  party  who  seeks  a  revision  of  the  case.  Ilagan  vs.  Foison, 
10  Pet.  IGO. 

Value  of  amount  in  dispute  docs  not  apply  to  cases  brought 
from  the  state  courts  arising  under  the  constitution,  tieaties 
and  laws  of  the  Union.  Buel  vs.  Van  Ness,  8  Whea.  312  ;  5 
Cond.  445. 

Sec  also  generally  upon  this  subject,  United  States  vs. 
McDowell,  4  Cra.  31G;  2  Cond.  122.  Coo/c  vs.  Woodro?v,  5 
Cra.  13;  2  Cond.  173  ;  Peyton  vs.  Robertson,  0  Whea.  527  ;  5 
Cond.  CGO.  Lessee  of  Meredith  vs.  McKec,  1  Pet.  248.  Scott  vs. 
Lunt's  Administrators,  G  Pet.  349.  Knapj)  vs.  Bonis,  2  How. 
73.  Gordon  vs.  Longest,  IG  Pet.  97.  Ba7i/c  United  States 
vs.  Daniels,  12  Pet.  32.  Ross  vs.  Prentiss,  3  How.  771.  Barri/ 
vs.  Mercein,  5  How.  103.  Sewall  vs.  Chamberlain,  5  How.  G. 
Olirer  vs.  Alexander,  G  Pet.  143. 


106  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,i7S9  exceeds  the  sum  or  value  of  two  thousand  dollars, 

to  warrant  excluslve  of  costs,  may,  upon  a  writ  of  crrm\  be  re- 

tbe  same. 


Writ  of  Error. 
Writs  of  error  only  lie  from  a  final  judgment  of  llie  circuit 
court  ill  cases  of  common  law.     Rutherford  vs.  Fisher,  4  Dall. 
22  ;    1  Cond.  21G.     Boyle  vs    Zacharic  ct  al.  6  Peters,  648. 

Pievious  to  the  act  of  1S40,  cli.  43,  it  was  held  that  a  writ 
of  error  does  not  lie  to  the  supreme  court,  to  reverse  the 
judgment  of  a  circuit  court  in  a  civil  action,  or  remove  a  civil 
cause  from  the  circuit  court,  where  such  causes  have  been  car- 
ried up  to  the  circuit  court  from  the  district  court  on  writ  of 
error.  Those  causes  originating  in  a  district  court,  which  are 
taken  to  the  circuit  by  appeal,  are  the  only  ones  which  can  be 
taken  to  the  supreme  court.  United  States  vs.  Goodwin,  7  Cra. 
108  ;  2  Cond.  434.  United  States  vs.  Gordon,  7  Cra.  287  ;  2 
Cond.  494.  United  States  vs.  Tenhroek,  2  Whea.  248  ;  4  Cond. 
109,  111.  United  States  vs.  Barlcer,  2  Whea.  395  ;  4  Cond. 
181. 

Put  by  the  act  of  1840,  ch.  43  (after  quoted),  writs  of  error 
mny  now  be  canicd  to  the  supreme  court  from  the  judgments 
of  the  circuit  courts,  in  cases  brought  there  by  writ  of  error, 
from  the  district  courts. 

When  a  writ  of  errtn-  is  allowed,  and  th.e  amount  of  the 
verdict  is  not  enough  to  make  the  writ  a  matter  of  right,  the 
whole  case  goes  up.     Hogg  vs.  Emerson,  6  Legal  Obs.  148. 

Writs  of  error  may  be  amended  in  the  return  day,  teste  and 
direction,  if  there  be  any  thing  to  amend  by.  Mos.s?nan  vs. 
Higginson,  4  Dall.  12  ;   1  Cond.  210. 

A  writ  of  error  must  bear  teste  of  the  term  next  preceding 
that  to  which  it  is  returnable  ;  and  a  term  must  not  intervene 
between  the  teste  and  return.  Hamilton  vs.  Moore,  3  Dall.  371 ; 
1  Cond.  IGS.  Villalahos  vs.  United  States,  G  How.  81,  90; 
citing  Lloijd  vs.  Alexander,  1  Cra.  3G5 ;  1  Cond.  334.  Bailiff 
vs.  Tifpi'ng,  2  Cra.  40G  ;   1  Cond.  433.     Wood  vs.  hide,  4  Cra. 


SUPREME  COURT.  •  107 


examined  and  reversed  or  affirmed  in  the  supreme 
court,  the  citation  being  in  such  case  signed  by 

ISO  ;  2  Cond.  7G.  PicIccU's  Ilcirs  vs.  Legcncood,  7  Pet.  144. 
Ycalon  vs.  Lenox,  8  Pet.  123.    S.  C.  7  Pet.  220. 

What  are  ^nal  decrees,  and  what  not.  Forgay  vs.  Conrad, 
6  How.  201.  Van  Ness  vs.  Van  Ness,  G  How.  62.  Weston  vs. 
Cit'/  Charleston,  2  Peters,  449.  Gibhons  vs.  Ogden,  6  Whea. 
448  ;  5  Con.  134.  Rutherford  vs.  Fisher,  4  Dall.  22  ;  1  Cond. 
210.  Young  vs.  Grvndi/,  G  Cra.  51  ;  2  Cond.  300.  Gibbons 
vs.  Ogden,  G  Whea.  488;  5  Cond.  134.  Pepper  \s.  Dunhip,  5 
How.  51.  Lea  vs.  Kelly,  15  Pet.  213.  Armstrong  vs.  Treas. 
Athens  County,  IG  Peters,  281.  Commercial  Bank  of  Cincin- 
nati \i^.  Buehifigham's  Ex'rs,  5  How.  317.  Mills  vs.  Brouji,  IG 
Peters,  iJ^Zij.  Carr  et  als.  vs.  Iloxic,  13  Pet.  4G0.  Young  et  al. 
vs.  Smith,  15  Pet.  287. 

When  writ  of  error  lies  :  Wilson  vs.  Daniel,  3  Dall.  401 ;  1 
Cond.  185.  Gordon  vs.  Longest,  IG  Pet.  97.  ZT.  S.  vs.  Eliason, 
16  Pet.  301.  Tucher  vs.  Oxley,  5  Cra.  34  ;  2  Cond.  182.  Ken- 
nedy vs.  Brent,  6  Cra.  187  ;  2  Cond.  345.  Brent  vs.  Chapman, 
5  Cra.  358  ;  2  Cond.  279.  Shanhland  vs.  Cor.  //  Washington, 
5  Pet.  300.  7//i,'-/r  vs.  Coolidge,  2  Whea.  363  ;  4  Cond.  155. 
Md/cr  vs.  Nichols,  4  Whea.  311;  4  Cond.  4G6.  Ward  vs. 
Gregory,  7  Pet.  633. 

When  not:  Penhallow  vs.  Doane,  3  Dall.  54  ;  1  Cond.  21. 
Tolland  vs.  Spragne,  12  Pet.  300.  tI?^/*  vs.  S/«///<,  16  Pet. 
303.  Evans  vs.  6Vr,  14  Peters,  1.  Smith  vs.  Trabeau's  Heirs, 
9  Pet.  4.  L'  S.  vs.  Erans,  5  Cra.  280  ;  2  Cond.  2.JG.  117 /t/t 
vs.  Mandcrille,  7  Cra.  152  ;  2  Cond.  452.  Marine  Ins.  Co.  vs. 
Hodgson,  G  Cra.  200  ;  2  Cond.  347.  U.  S.  vs.  Moore,  3  Cra. 
159;  1  Cond.  480.  Hinderson  vs.  il/ow/r,  5  Cra.  11  ;  2  Cond. 
172.  Barr  vs.  Gratz,  4  Whea.  213;  3  Cond.  426.  Blunl's 
Lessee  vs.  Smith,  7  Whea.  248;  5  Cond.  274.    Broun  vs.  C/«/7.-, 

4  How.  4.  Erans  vs.  Philips,  4  Whea.  73  ;  4  Cond.  394.  Ex 
parte  Dorr,  3  How.  103.     Bank  of  Dubuque  vs.  United  States, 

5  How.  213.      United  States  vs.  Gibert,  2  Sum.  19. 


ACT,  1789 


108  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTU7S9  ^  judge  of  such  circuit  court,  or  justice  of  the 
supreme  court,  and  the  adverse  party  having  at 
least  thirty  days'  notice. 

Revers.ii         j^^i  thcrc  shiill  bc  uo  rcvcrsal  on  such  writ  of 

when  will 

be  order-    error,  for  error  in  ruUng  any  plea  in  abatement, 

other  than  a  plea  to  the  jurisdiction  of  the  court, 

or  such  plea  to  a  petition  or  bill  in  equity,  as  is 

in  the  nature  of  a  demurrer,  or  for  an  error  in 

Tiim         fict.     And  writs  of  error  shall  not  be  brought  but 

wiiid"       within  five  years  after  rendering  or  passing  the 

ro'rin^ybu  judgmcut  or  dccrcc  complained  of,  or  in  case  the 

person  entitled  to  such  writ  of  error  be  an  infant, 

feme  covert,  nori  compos  mentis^  or  imprisoned,  then 

within  five  years  as  aforesaid,  exclusive  of  the 

Security     ^'mc  of  sucli  disability.     And  every  justice  or 

error'."  "'  j^^^b^  siguiug  a  cilatlou  on  an)^  writ  of  error  as 

aforesaid,  shall  take  good  and  sufficient  security 

that  the  plaintiff  in  error  shall  prosecute  his  writ 

to  effect,  and  answer  all  damages  and  costs  if  he 

fail  to  make  his  plea  good.      Act,   1789,  ch.  20, 

§22. 

I.\    REVENUE    CASES. 

ACT.  \m.        Final  jndgmenfs  in    any   circuit  court  of  the 
Appeih.to    United  States,  in  any  civil  action  brought  by  the 

jiirisflic-         TT      •         1    CI  r  1  n  n      ^ 

lion  ill  re-    Uniicd  fetatcs  for  the  enforcement  of  the  revenue 
cases.        laws  of  tlic  United  States,  or  for  the  collection  of 
the  duties  due,  or  alleged  to  be  due,  on  merchan- 
dise imported  therein,  may  be  re-examined,  and 
reversed  or  affirmed,  in  the  supreme  court  of  the 


SUPREME  COURT.  109 


United  States,  upon  tnii  ofcrr.tr,  as  in  other  cases,    act^w. 
without  re<^nrd  to  the  sum  or  value  in  controversy 
in  such  action,  at  tiie  instance  of  either  party. 
Jet,  J 844,  ch.  31. 


IN   CASES    BROUGHT    FROM    DISTRICT    COURTS    BY 
WRIT    OF    ERROR. 

IVr'ds  of  error  (1)  shall  lie  to  the  supreme  court  ACT^m 
from  all  judgments  of  a  circuit  court,  in  cases  Appellate 
brought  there  by  writs  of  error  irom  the  district  tion  in 

discs  hro  t 

court,  in  like  manner  and  under  the  same  regu-  in.mdist. 
lations,  limitations  and  restrictions,  as  are  now  writ  ol" 
provided  by  law  for  writs  of  error  to  judgments 
rendered  upon  suits  originally  brought  in  the  cir- 
cuit court.     Act,  1840,  ch.  43,  §  3. 


WRIT    OF    ERROR    A    SUPERSEOEAS. 

A  writ  of  error  shall  be  a  supersedeas,  and  stay    actu7S9. 
execution  in  cases  only  where  the  writ  of  error  ^vritof 

•'  error 

is  served,  by  a  cony  thereof  being  lodged  for  the  whcnasa- 

'       J  L  J  no  persedcas 

adverse   party  in    the   clerk's   office   where   the 
record  remains,  within  ten  days,  Sundays  exclii- 


(1)  Previous  to  the  passing  of  tlic  act  of  1S40,  ch.  43,  writs 
of  error  hiy  to  the  supreme  court  from  the  judgments  and 
decrees  of  the  circuit  courts,  in  cases  from  the  district  courts, 
only  according  to  the  provisions  of  the  22d  seclion  of  the  judi- 
ciary act  of  1789,  which  allowed  that  wjit  only  in  such  cases 
brought  irom  the  district  courts,  as  were  so  brought  there  by 
appeal.    Sec  references  to  first  note  to  "Appellate  Juiisdiction." 


no 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  17S9. 

and  stays 
execuiiuu. 


Costs  on 
afBrmauce 


ACT,  1794. 

Security 
on  writ  of 
error  uot 
being  a 
superse- 
deas. 


sive,  after  rendering  1  he  judgment,  or  passing  the 
decree  complained  of.  Until  the  expiration  of 
which  term  of  ten  days,  executions  shall  not 
issue  in  any  case  where  a  writ  of  error  may  be  a 
supersedeas;  and  where,  upon  such  writ  of  error, 
the  supreme  or  a  circuit  court  shall  affirm  a  judg- 
ment or  decree,  they  shall  adjudge  or  decree  to 
the  respondent  in  error  just  damages  for  his  delay, 
and  single  or  double  costs  at  their  discretion. 
Act,  1789,  r;//.  20,  §23. 

The  security  to  be  required,  (1)  and  taken  on 
the  signing  of  a  citation  on  any  writ  of  error, 
which  shall  not  be  a  supersedeas  and  stay  exe- 
cution, shall  be  only  to  such  an  amount  as,  in  the 
opinion  of  the  judge  or  justice  taking  the  same, 
shall  be  sufficient  to  answer  all  such  costs  as, 
upon  an  affirmance  of  the  judgment  or  decree, 
may  be  adjudged  or  decreed  to  the  respondent  in 
error.     Act,  1794,  ch.  3,  Sd  Cong,  Sess.  2. 


BY    APPEAL. 


ACT,  1803.        From  aWJinal  judgments  and  decrees  ( 1 )  rendered. 
Appeals      or  to  be  rendered,  in  any  circuit  court,  or  in  any 

when  will  ,  •  •,  .       • 

lie;  district  court  actmg  as  a  circuit  court,  in  any 


(1)  The  supreme  court  will  not  quasli  an  execution  issued 
by  the  court  below  to  enforce  a  decree,  pending  a  writ  of  error, 
if  the  writ  be  not  a  supersedeas  to  the  decree.  Wallcn  vs. 
WilUums,  7  Cra.  278;  2  Cond.  491. 

(1)  Previous  to  the  passage  of  the  above  act,  the  only  mode 
of  removal  of  causes  to  the  supreme  court,  whatever  might  be 


SUPREME  COURT.  1  1  1 


cmes  of  cqii'Uy,  of  admiraliy,  and  maritime  jurlsdlc-   a^t^*"- 
lion,  and  of  prize  or  no  prizc^  an  appeal,  where  the 
matter  in  dispute,  exclusive  of  costs,  shall  exceed 

the  nature  of  the  suit,  was  by  writ  of  error,  and  it  was  so  held 
in  the  case  of  BJa'in  vs.  ^h'lp  Carter,  4  Dall,  22. 

This  act,  so  far  as  admiralty  and  prize  causes  are  concerned, 
is  applicable  to  the  circuit  courts,  only  as  ajipellatc  tribunals. 
Conk.  Trca.  cd.  1S42,  14,  n. 

The  judicial  act  of  1789  speaks  of  an  aj^j^cal  and  o£n  writ  of 
error;  but  it  does  not  confound  the  terms,  or  use  them  promis- 
cuously. They  are  to  be  understood  in  their  ordinary  accepta- 
tion. An  appeal  is  a  process  of  civil  law  origin,  and  removes 
a  cause  entirely,  subjecting  the  fact  as  well  as  the  law  to  a  re- 
view and  a  re-trial ;  but  a  writ  of  error  is  a  process  of  common 
law  origin,  and  it  removes  nothing  for  re-examination  but  the 
law.     Wiseart  vs.  Dauclnj,  3  Dall.  321  ;   1  Cond.  144,  14G. 

The  distinction  between  writs  of  error  and  appeals  can  not 
be  overthrown  by  agreements  of  counsel.  Minor  vs.  Tilhtson, 
2  Howard,  332. 

The  act  of  1803,  repeals  those  parts  of  the  judiciary  act, 
which  authorize  a  writ  of  error,  and  a  statement  of  facts  in 
chancery  ca.ses ;  allows  an  appeal  from  the  decrees  of  a  circuit 
court  sitting  in  chancery;  and  directs  that  a  copy  of  the  bill, 
answer,  depositions,  and  all  other  proceedings,  of  what  kind 
soever,  in  the  cause,  shall  be  transmitted  to  this  court,  and  that 
no  new  evidence  shall  be  heard.  Conn.  vs.  Pcnn.  5  Whea.  424 ; 
4  Cond.  71G. 

An  appeal  under  the  act  of  1803,  prayed  for  and  allowed 
within  five  years,  is  valid,  although  the  security  was  not  given 
until  alter  the  lapse  of  five  years.  T/ic  Dos  Hcrmanos,  10 
Whea.  30G  ;  G  Cond.  109. 

Appeal,  proper  mode  of  reviewing  causes  of  admiralty  and 
niiiritime  jurisdiction  and  cases  in  equity.  The  Sun  Pedro,  2 
Whea.  132;  4  Cond.  65.  Bayard  vs.  Lombard,  9  Howard, 
530.     McCoUom  vs.  Eager,  2  How.  Gl. 


112  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTJ503.    ii^Q  g^^fj^  Qj.  value  of  two  thousand  dollars,  shall 
tvhatpro-    be  allowed  to  the  saprenie  court  of  the  United 

leedings  •  r    i 

JO  up;       States ;  and  upon  such  appeal,  a  transcript  of  the 
libel,  bill,  answer,  depositions,  and  all  other  pro- 


Tlie  rules,  regulations  and  restrictions  contained  in  the  22d 
and  23d  sections  of  tlic  judiciary  act,  respecting  the  time  within 
which  a  writ  of  error  shall  bo  brought,  and  in  what  instances 
it  shall  operate  as  a  supersedeas ;  the  citation  to  the  adverse 
party ;  the  security  to  be  given  by  the  plaintiff  in  error  for 
prosecuting  his  suit ;  the  restrictions  upon  the  appellate  court 
as  to  reversals  in  certain  enumerated  cases,  are  applicable  to 
appeals  under  the  act  of  1803,  and  are  to  be  substantially 
observed ;  except  that  where  the  appeal  is  prayed  at  the  same 
term  when  the  decree  or  sentence  is  pronounced,  a  citation  is 
not  necessary.      The  San  Pedro,  2  Whea.  132  ;   4  Cond.  66. 

Previous  to  the  act  of  1803,  it  was  held  that  a  writ  of  error 
would  not  lie  from  a  decree  in  a  circuit  court  overruling  a 
plea,  and  ordering  a  defendant  to  answer.  Ruthejford  vs. 
Fisher,  4  Dall.  22  ;   1  Cond.  216. 

An  appeal  will  not  lie  from  an  interlocutory  decree  dissolv- 
ing, or  refusing  to  dissolve,  an  injunction.  Young  vs.  Grundy y 
6  Cra.  51  ;  2  Cond.  300.  Gibbons  vs.  Ogdcn,  6  Whea.  448  ;  5 
Cond.  134. 

But  it  will  lie  from  a  decree  for  sale  of  mortgaged  property, 
on  a  bill  to  foreclose.    Ray  vs.  Laic,  3  Cra.  179 ;   1  Cond.  485. 

Appeals  and  writs  of  error  must  be  dismissed,  where  no 
citation  has  been  issued  or  served  on  the  deftmdant  in  error, 
Hogan  and  al.  vs.  Ross,  9  Howard,  002.  U.  S.  vs.  Curry,  6 
Howard,  lOG ;  citing  ViUalabos  vs.  U.  S.,  lb.  81.  Broicn  vs. 
Union  Bank  of  Florida,  4  Howard,  465.  Lloyd  vs.  Alexander, 
1  Cra.  365.     Bailifvs.  Tipping,  2  Cra.  406  ;   1  Cond.  433. 

Appearance  cures  want  of  a  monition  or  irregularity  of  pro- 
cess. Pcnhallow  vs.  Doane^s  Adm^strs,  3  Dall.  54 ;  1  Cond.  21. 
Wood  vs.  Lide,  4  Cra.  ISO.  2  Cond.  76.  Knox  vs.  Summers, 
3  Cra.  496.    Grade  vs.  Palmer,  8  Whea.  699  ;   5  Cond.  561. 


SUPREME  COURT.  ]  13 


ceedings  of  what  kind  soever  in  the  cause,  shall    actjsu;. 
be  transmitted  to  the  said  supreme  court;  and  Newevi- 

dence  in 

no  new  evidence  shall  be  received  in  the  said  whutcasti 
court,  on  the  hearnig  of  such  appeal,  except  m  taken. 
admiralty  and  prize  causes:  and  such  appeals 
shall  be  subject  to  the  same  rules,  regulations  and 
restrictions  as  are  prescribed  in  law  in  cases  of 
writs  of  error ;  and  the  supreme  court  shall  be, 
and  is  hereby  authorized  and  required  to  receive, 
hear  and  determine  such  appeals.  Act,  1803, 
ch.  40,  §  2. 


JUDGMENT    ON   REVERSAL. 

When  a  judgment  or  decree  shall  be  reversed    act,  nsn. 
in  the  supreme  court,  such  court   shall  render  juii-jment 
such  judgment,  or  pass  such  decree,  as  the  court  sai. 
below  should  have  rendered  or  passed ;   except 
where  the  reversal  is  in  favor  of  the  plaintiif,  or 
petitioner  in  the  original  suit,  and  the  damages 
to  be  assessed  or  matter  to  be  determined,  are 
uncertain,    in   which    case    they  shall   remand 
the  cause  for  a  final  decision.    And  the  supreme  Supreme 

,       .,  ,  .  .  -  court  not 

court  shall  not  issue  execution  in  causes  that  are  to  issue 
removed  before  them  by  writs  of  error,  but  shall 
send  a  special  mandate  to  the  circuit  court  to 
award    execution    thereon.      Act,   1789,  ch.  20, 
6  24. 


1 14  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1S03. 


ON    CERTIFICATE    OF    DIVISION    OF    OPINION. 


jumdic-^        Whenever  any  question  (1)  shall  occur  before 
a  ch'cuit  court,  upon  which  the  opinions  of  the 


(1)  The  intention  of  this  act  is,  that  a  division  of  the  judges 
of  the  circuit  court,  upon  a  single  and  materal  point,  in  the 
progi'ess  of  a  cause,  should  be  certified  to  the  supreme  court, 
and  not  the  whole  cause.  When  a  certificate  of  division  brings 
up  the  whole  cause,  it  would  be,  if  the  court  should  decide  it, 
in  effect,  the  exercise  of  original,  rather  than  appellate  jui'is- 
diction.     White  vs.  Turk,  12  Pet.  238. 

The  question  certified  will  alone  be  considered.  Ogle  vs. 
Lee,  2  Cra.  33.  Wayman  vs.  Southard,  10  Whea.  1 ;  6  Cond. 
1,  3.     Adams  vs.  Jones,  12  Pet.  207. 

AVhere  the  judges  below  divided  on  the  whole  case,  and 
directed  the  whole  case  to  be  certified  to  the  supreme  court, 
it  was  held  irregular,  and  the  cause  was  remanded  back,  that 
further  proceedings  should  be  had  therein,  according  to  law, 
Saunders  vs.  Gould,  4  Pet.  392. 

Where  the  points  of  division  are  too  imperfectly  stated  to 
enable  the  judges  to  pronounce  an  opinion,  the  court  will  not 
award  a  venire  dcnovo,  nor  certify  the  cause  to  the  court  below, 
but  merely  certify  that  the  points  are  too  imperfectly  stated. 
Perkins  vs.  Hart,  11  Whea.  237  ;  6  Cond.  287,  296. 

Where  the  court  is  equally  divided,  the  decree  below  is 
affirmed.  The  Antelope,  10  Whea.  66  ;  6  Cond.  30.  Etting 
vs.  Bank  of  United  States,  11  Whea.  59;  6  Cond.  210,  222. 
United  States  vs.  Worrall,  2  Dall.  388. 

The  district  judge  can  not  sit  in  the  circuit  court  in  a  cause 
brought  by  writ  of  error  from  the  district  to  the  circuit  court ; 
such  a  case  can  not  be  brought  from  the  circuit  court  to  this 
court  upon  a  certificate  of  division  of  opinion.  United  States 
vs.  Lancaster,  5  Whea.  434 ;  4  Cond,  720. 

This  court  can  not  take  jurisdiction  of  a  question  on  which 
the   opinions  of  the  judges  of  the  circuit  court    are  opposed. 


SUPREME  COURT.  1  1 5 


judges  shall  be  opposed,  the  point  upon  which  the    At-TMso^ 
disagreement   shall   happen,    shall,   during   the  cas..s.,f 

~  ^  ^  divixiiiii  of 


rt[illihill. 


where  tlie  division  of  opinions  arises  upon  some  proceedinnj 
subsequent  lo  the  decision  of  the  cause  in  that  court.  Deve- 
reux  vs.  Marr,  12  AVhea.  212  ;  6  Cond.  522. 

Jurisdiction  will  not  be  taken,  where  the  division  was  on  a 
motion  for  a  rule  to  show  cause  why  taxation  of  marshal's 
costs  on  an  execution  should  not  be  reversed  and  corrected. 
Bank  of  United  States  vs.  Green,  6  Pet.  2G. 

A  divloion  on  a  motion  for  a  new  trial,  in  a  civil  or  criminal 
case,  is  not  such  a  division  f»f  opinion  as  may  be  certified  lo 
the  supreme  court.  United  States  vs.  Da?iicl,  6  Wliea.  542 ;  5 
Cond.  170.     Lanning  vs.  London,  4  Wash.  332. 

No  jurisdiction  exists  in  the  case  of  a  division  of  opinion  of 
the  judges  of  the  circuit  court,  for  the  District  of  Coliwihia. 
United  States  vs.  John  Tyler,  7  Cra.  285  ;  2  Cond.  492. 

Wliere  the  judges  below  differed  on  certain  points  which 
arose  on  the  trial,  before  a  jury,  they  were,  with  the  evidence, 
certified  to  this  court.  Carringtoji  vs.  The  Merchant's  Ins.  Co. 
8  Pet.  495. 

Questions  respecting  the  practice  of  the  circuit  court  in 
equity  cases,  which  depend  on  the  sound  discretion  of  the 
court,  in  the  application  of  the  rules  which  regulate  the  course 
of  equity  proceedings,  to  the  circumstances  of  particular  cases, 
arc  not  questions  which  can  be  certified,  on  a  division  of 
opinion  of  the  circuit  court.    Parker  vs.  Nixon.,  10  Pet.  408. 

.Turisdiction  extends  only  to  points  of  law  and  not  of  fact. 
Wilson  vs.  Barnum,  8  How.  258,  262. 

The  court  will  not  object  to  the  practice,  in  jiropcr  cases  and 
on  proper  occasions,  of  certifying  a  point,  where  the  judges 
rather  doubted  than  differed  about  it.  But  they  must  be  cases 
sanctioned  by  the  judgment  of  one  of  the  judges  of  this  court, 
in  his  ci  Till  it.  A  loose  practice  in  this  respect,  might  render 
the  court  substantially  a  court  for  the  original  jurl.-^diction  of 
all  causes  of  importance,  where  the   constitution  and  the  laws 


116  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTV1S02    same  term,  upon  the  request  of  either  party,  or 
their  counsel,  be  stated  under  the  direction  of  the 

intended  to  make  it  altogether  appellate  in  its  character,  ex- 
cept in  the  few  cases  of  original  jurisdiction  enumerated  in  the 
constitution.      United  States  vs.  Stone,  14  Pet.  524,  525. 

Wliere  the  opinions  of  the  judges  of  the  circuit  court  are 
opposed,  the  judges  do  not  assign  any  reasons  of  their  respective 
opinions,  but  merely  state  the  point  of  disagreement,  that  either 
party  may  carry  it  to  the  supreme  court  for  ultimate  decision. 
Trial  of  Smith  and  Ogden,  47 ;  cited  in  note  to  1  Cond.  208. 

As  to  particular  cases,  which  have  come  up  on  a  certificate 
of  division  of  opinion,  see  Ogden  vs.  BlacJcledgc,  2  Cra.  272 ; 
1  Cond.  411.  Hephurn  vs.  Ellzey,  2  Cra.  445;  1  Cond.  444. 
United  States  vs.  Gurney,  4  Cra.  333 ;  2  Cond.  132.  Tyler  vs. 
Tuel,  6  Cra.  324.  McKim  vs.  VoorJdes,  7  Cra.  279.  Umted 
States  vs.  Tyler,  7  Cra.  285  ;  2  Cond.  492.  Fatten' s  Lessee  vs. 
Easton,  1  Whea.  476  ;  3  Cond.  631.  Colson  vs.  Lctcis,  2  Whea. 
377 ;  4  Cond.  168.  Somcrville's  Ex'rs  vs.  Hamilton,  4  Whea^ 
230  ;  4  Cond.  436.  Sergeant's  Lessee  vs.  Biddle,  4  Whea.  508  ; 
4  Cond.  522.  United  States  vs.  Wiltherger,  5  Whea.  76  ;  4 
Cond.  593.  United  States  vs.  Smith,  5  Whea.  153  ;  4  Cond. 
619.  United  States  vs.  Holmes,  5  Whea.  412 ;  4  Cond.  708. 
Green  vs.  Biddle,  8  Whea.  1 ;  5  Cond.  369.  Miller  vs.  Stewart, 
9  Whea.  680;  5  Cond.  727.  Wilkins  vs.  HoUingsivorth,  6 
Whea.  240  ;  5  Cond.  79.  United  States  vs.  Kelly,  11  Whea. 
417  ;  6  Cond.  370.  Mason  vs.  Haile,  12  Whea.  370  ;  6  Cond. 
535.  Perkins  vs.  Hart,  11  Whea.  237  ;  6  Cond.  287.  Schim- 
melpimich  vs.  Bayard,  1  Pet.  264.  Wilcox  vs.  Tlu')nmer''s  ExWs, 
4  Pet.  172.  Dox  vs.  P.  M.  General,  1  Pet.  318.  Bank  of 
United  States  vs.  Owens,  2  Pet.  527.  Buckner  vs.  Finley,  2 
Pet.  568.  Inglis  vs.  Trustees,  Sfc,  3  Pet.  99.  United  States  vs. 
Randenhush,  8  Pet.  288.  United  States  vs.  Brev;ster,  7  Pet. 
164.  United  States  vs.  Wilson,  7  Pet.  150.  Backhouse  vs. 
Patton,  5  Pet.  160.  United  States  vs.  Rohertson,  5  Pet.  641. 
United  States  vs.  Bank  North  Carolina,  6  Pet.  29.     Kirkmun 


SUPREME  COURT.  H 


judges,  and  certified  under  the  seal  of  the  court,  ^f  tms/j 
to  the  supreme  court,  at  then'  next  session  to  be 
held  thereafter ;  and  shall,  by  the  said  court,  be 
finally  decided.  And  the  decision  of  the  supreme  f^^^e  tiTui 
court,  and  their  order  in  the  premises,  shall  be 
remitted  to  the  circuit  court,  and  be  there  entered 
of  record,  and  shall  have  eflVct  according  to  the 
nature  of  the  said  judgment  and  order.     Provided,  ca.ise 

*"  may  be 

that  nothing  herein  contained  shall  prevent  the  proceeded 
cause  from  proceeding,  if  in  the  opinion  of  the 
court  farther   proceedings   can   be  had  Avithout 
prejudice  to  the  merits :  and  provided  also,  that 
imprisonment  sliall  not  be  allowed,  nor  punish-  inent  n.r 
ment  in  any  case  be  inflicted,  where  the  judges  aii..w..im 
of  the  said  court  are  divided  in  opinion  upon  the 
question  touching  the  said  imprisonment  or  pun- 
ishment.    Act,  1S02,  ch.  31,  §  6. 

IN    CASES    OF    COPYRIGHTS    AND    PATENTS. 

From  (dl  juds^mcnls  and  decrees  ( 1 )  of  any  circuit    act,  isn 
court,  as  well  in  equity  as  at  law,  rendered  in  all  Appellate 

j'liisdic- 

vs.  IlamiUon,  G  Pet.  20.  City  New-  York  vs.  Milne,  11  Pet.  102. 
Ilarrin  vs.  EWvt,  10  Pet.  25.  Daris  vs.  Bradcn,  10  Pet.  286. 
Elliot  vs.  Sicarticout,  10  Pet.  137.  Denn  vs.  Rcid,  10  Pet.  524. 
Fleniing  vs.  Page,  9  How.  603.  United  States  vs.  Marigold,  9 
How.  560.  Lambert  vs.  Gliisclin,  9  How.  552.  HiU  vs.  Vnitcd 
istatvs,  9  How.  386.  Harrison  vs.  Vosc,  Ibid.  372.  WdVuim- 
son  vs.  Btrri/,  8  How.  495.  United  States  vs.  Staats,  8  How. 
41.  McArthiir's  Heirs  vs.  Dun's  Heirs,  7  How.  262.  Lewis 
vs  Leu-is,  7  How.  776,  and  other  cases. 

(1)  The  14lh  and  15th  sections  of  the  act  of  1836  prescribe 


118  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTjsio.   actions,  suits,  controversies  and  cases,  arising  im- 
''■'"  '",      der  any  law  of  the  United  States,  s^ranfins:  or  wn- 

cases  of  •'  'DO 

c-i.y  riyiu  iirmhv' to  authors  or  inventors  the  exclusive  ri^ht  to 

ami  lit   [jii-  .....  ,  '-' 

teuts.  their  icritings,  inventions  and  discoveries,  a  icrit  of 
error  or  ajypeal,  as  the  case  may  require,  shall  lie 
to  the  supreme  court  of  the  United  States,  in  the 
same  manner,  and  under  the  same  circumstances, 
as  is  now  provided  by  law  in  other  judgments 
and  decrees  of  such  circuit  courts.  Aci,  1819, 
ch.  19. 

From  all  judgments  and  decrees,  in  any  circuit 
court,  or  in  any  district  court  having  the  powers 
and  jurisdiction  of  a  circuit  court,  as  well  in 
equity  as  at  law,  rendered  in  all  actions,  suits, 
controversies  and  cases,  arising  under  any  law  of 
the  United  States,  granting  or  confirming  to  in- 
ventors the  exclusive  right  to  their  inventions  or 
discoveries,  a  writ  of  error  or  appeal,  as  the  case 
may  require,  shall  lie  to  the  supreme  court  of  the 
United  States,  in  the  same  manner  and  under  the 


the  rules  which  must  govern  on  the  trial  of  actions  for  the 
violations  of  patent  rights ;  and  these  sections  are  oj)erative, 
so  far  as  they  are  applicable,  notwithstanding  the  patent  may 
have  been  granted  before  the  passage  of  the  act  of  1836. 
McClurgh  vs.  K'mgsland,  1  How.  202,  209. 

Where  a  case  is  sent  to  the  supreme  court  under  the  discre- 
tion conferred  upon  the  court  below  by  the  17th  section  of  the 
act  of  1836,  the  Avhole  case  comes  up,  and  not  a  few  points 
only.     Hogg  vs.  Emerson,  6  How.  437,  478. 

The  word  "reasonable"  in  the  statute  applies  to  the  "cases" 
rather  than  to  the  points  of  the  cases.     Ibid. 


SUPREME  COURT.  1  H» 


Ar;T.  1830 


same  circumstances  as  is  now  provided  by  law 
in  other  judgments  and  decrees  of  circuit  courts, 
and  in  aU  other  cases  in  ichich  the  court  shall  deem  it 
reasonable  to  allow  the  same.  Act^  1836,  ch.  357, 
§17. 

IN    CASES    OF    HABEAS    CORPUS. 

From  the  judgment  of  a  circuit  court,  rendered    actvis^o. 
on  appeal  from  any  decision  of  a  justice  of  the  Appellate 
supreme  court,  or  of  a  judge  of  a  district  court,  tion  in 
under  the  act  authorizing  the  issuing  of  a  writ  habeas 
of  habeas  corpus  when  subjects  of  foreign  states  de^the"" 
are  in  the  custody  of  the  United  States,  an  appeal  act.""* 
lies  to  the  supreme  court  of  the  United  States  on 
such    terms,    and   under  such  regulations    and 
orders,  both  respecting  the  person  in  custody,  and 
all  proceedings  connected  therewith,  as  the  judge 
hearing  the  said  cause  may  prescribe.     Act^  1842, 
ch.  257. 

FROM    DISTRICT    COURTS. 

Appeals  and  writs  of  error  lie  from  the  decrees  '^^'^il^/®'' 

and  judgments  of  district  courts  directly  to  the  ^pp^^,c 

supreme  court  of  the  United  States,  in  the  same  •j"',',",';^^^ 

manner,  and  under  the  same  regulations  as  from  jJ.'^j'JJfgi,. 

a  circuit  court,  when   such  district  courts   are  '.'i"^\,"t 

clothed  with  circuit  court  powers.  ^""'^"' 

Appenls  and  writs  of  error  also  lie  from  the  f"p«rtirn 

^  '■  lar  cases. 

judgments  and  decrees  of  the  following  district 


120  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTS.  1R31- 
1851. 


courts,  under  particular  acts  of  congress,  and  in 
the  particular  cases  therein  specified  : 

From  the  district  court  of  Western  Tennessee, 
Act.  1838,  ch.  118,  §  4;  of  Northern  Alabama, 
Acts,  1831,  ch.  28;  1837,  ch.  3  1,  §  2;  1838,  ch.  12, 
§  2;  1842,  ch.  123;  of  Texas,  Act,  1846,  ch.  1,§2; 
of  Wisconsin,  Act,  1846,  ch.  89,  §4;  of  Middle 
Alabama,  Act,  1846,  ch.  104;  of  Northern  and 
Southern  Florida,  Acts,  1845,  ch.  75,  §  3;  1847,  ch. 
210,  §  1  ;  of  Northern  Georgia,  Act,  1848,  ch.  151, 
§  9;  of  Iowa,  Act,  1849,  ch.  124,  §  6;  of  Califor- 
nia, Acts,  1850,  c/j.  86,  §  10;  1851,  ch.  41,  §§  10, 
11  ;  and  of  "Western  Arkansas,  Act,  1851 ,  ch.  24, 
§3.(1) 

FROM    STATE    COURTS. 

ACT.  1798.  A  final  judgment  or  decree  (1)  in  any  suit,  in 
Appellate  thc  hlghcst  court  of  law  or  equity  in  a  state  in 
'uo.?fron.    which  a  decision  in  the  suit  could  be  had,  where  is 

(1)  Of  the  above  courts  those  in  Southern  Florida,  Texas, 
California,  Western  Tennessee  and  Iowa,  are  clothed  with  full 
circuit  court  powers,  and  those  in  Northern  Florida,  Northern 
Georgia,  Northern  Alabama,  Western  Arkansas,  and  Wiscon- 
sin, are  invested  with  like  authority,  except  in  cases  of  appeals 
and  vsrrits  of  error.  Of  the  court  in  Middle  Alabama,  the  act 
merely  provides  for  appeals  and  writs  of  error  from  it,  saying 
nothing  concerning  its  jurisdiction. 

(1)  The  appellate  power  of  the  United  States  extends  to  cases 
pending  in  the  state  courts  ;  and  the  25th  section  of  the  judici- 
ary act  is  supported  by  the  letter  and  spirit  of  the  constitution. 
There  is  no  clause  in  that  instrument  which  limits  this  power. 


SUPREME  COURT.  121 


drawn  in  question  the  validity  of  a  treaty  or  sla-    '''^"^_^^- 
tute  of!  or  an  authority  exercised  under  the  TJni-  '';:'''"'"'» 

Martin  vs.  Hunter's  Lessee,  1  AVliea.  304 ;  3  Cond.  575,  592, 
596. 

We  are  admnnishcd  by  the  argument,  of  the  jealousy  with 
which  tlie  states  of  the  Union  view  tlie  revising  power  intrusted 
by  the  constitution  and  laws  of  the  United  States  to  this  tribu- 
nal. To  observations  of  this  character,  the  answer  uniformly 
given  has  been,  that  the  course  of  the  judicial  department  is 
marked  out  by  law.  We  must  tread  the  direct  and  narrow 
path  prescribed  for  us.  As  this  court  has  never  grasped  at 
ungranted  jurisdiction,  so  will  it  never,  we  trust,  shrink  from 
the  exercise  of  that  which  is  conferred  upon  it.  Opinion  Ch.  J. 
Marshal.     Fislter  vs.  CohercU,  5  Pet.  248,  259. 

Under  the  25th  section  the  supreme  court  has  no  jurisdic- 
tion, unless  the  judgrnent  or  decree  of  the  state  court  be  ^  final 
one.  A  judgment  reversing  a  decision  of  an  inferior  court, 
and  awaiding  a  venire  de  novo,  is  not  a  final  judgment.  Hous- 
ton vs.  Moore,  3  Whea.  433 ;  4  Cond.  286.  Gihhons  vs.  Og- 
dcn,  G  AVhea.  448 ;  5  Cond.  134.  Weston  vs.  City  Council  of 
Charleston,  2  Pet.  449. 

It  is  no  objection  to  the  exercise  of  such  jurisdiction,  that 
one  party  is  a  state  and  the  other  a  citizen  of  that  state.  Co- 
hens vs.  Virginia,  6  Whea.  264 ;  5  Cond.  90. 

In  order  to  bring  a  cause,  for  a  writ  of  cnor  or  appeal, 
within  the  25lli  section,  it  must  appear  on  the  face  of  the 
record  :  1st.  That  some  one  of  the  questions  stated  in  that 
section  did  arise  in  the  state  court :  and,  2d.  That  the  question 
was  decided  in  the  slate  court,  as  required  in  that  same  section. 
Crouell  vs.  Randell,  10  Pet.  368,  398.  Inglcc  vs.  Coolidge,  2 
^\^lea.  363;  4  Cond.  155.     Miller  vs.  Nichols,  4  Whea.  311  ; 

4  Cond.  465.     Coin.  Banh  Cincinnati  vs.  Buckinghatn's  Ex'rs, 

5  How.  317. 

The  appellate  jurisdiclion,  in  cases  brought  from  the  state 
courts,  arising  under  the  conslitutiun,  laws  and  treaties  of  the 


122  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Ar:Tj789.   ^g(j  states,  and  the  decision  is  against  their  vali- 
conrta,  iu    dity ;  OF  Avhcrc  is  drawn  in  question  the  validity 

cases.  

union,  is  not  limited  by  the  value  of  the  matter  in  dispute. 
Bud  vs.  Van  Ness,  8  Whea.  312 ;  5  Cond.  445. 

Where  the  construction  of  any  clause  of  the  constitution,  or 
any  statute  of  the  United  States,  is  drawn  in  question  in  any 
state  court,  the  decision  must  be  against  the  right  or  title  set 
up  under  the  constitution  or  statute.  It  is  not  enough  that  the 
construction  of  the  statute  was  drawn  in  question.  Williams 
vs.  Norris,  12  Whea.  117;  G  Cond.  462.  Montgomery  vs. 
Hernandez,  12  Whea.  129;  6  Cond.  475.  Gordon  vs.  Cal- 
cleugh,  3  Cra,  268 ;  1  Cond.  524.  Mills  vs.  Brown,  16  Peters, 
525 ;  Menard  vs.  Aspasia,  5  Peters,  505. 

Where  the  validity  of  a  treaty,  or  statute  or  autliority  exer- 
cised under  the  United  States,  is  drawn  in  question,  the  decision 
must  be  against  their  validity.  Crowell  vs.  Randell,  10  Pet. 
368.    McCluny  vs.  Silliman,  6  Whea.  598  ;  5  Cond.  197,  199. 

Where  is  drawTi  in  question  the  validity  of  a  statute,  or  an 
authority  exercised  under  any  state,  on  the  ground  of  their  being 
repugnant  to  the  constitution,  treaties,  or  laws  of  the  United 
States,  the  decision  must  be  in  favor  of  their  validity.  Martin 
vs.  Hunter's  Lsssee,  1  Whea.  304  ;  3  Cond.  575.  Com.  Bank  of 
Kentucky  vs.  GriffUh,  14  Pet.  56.  Weston  vs.  City  Council  of 
Charleston,  2  Peters,  4'19.  Satterlee  vs.  Matthewson,  2  Peters, 
380. 

It  is  not  indispensable,  however,  that  it  should  appear  on  the 
record  in  iotidem  verbis,  or  by  direct  or  positive  statement,  that 
the  question  was  made,  and  the  decision  given  by  the  court 
below  on  the  very  point ;  it  is  sufficient,  if  it  is  clear,  from  the 
facts  stated,  by  just  and  necessary  inference,  that  the  question 
was  made,  and  that  the  court  below  must,  in  order  to  have 
arrived  at  the  judgment  pronounced  by  it,  have  come  to  the 
very  decision  of  that  question  as  indispensable  to  that  judgment. 
Crowell  vs.  Randell,  10  Pet.  368.  Armstrong  vs.  Treasurer  of 
Athens  County,  16  Pet.  281.     Satterlee  vs.  Matthewson,  2  Pet. 


SUPREME  COURT.  123 


of  a  statute  of,  or  an  authority  exercispcl  under 
any  state,  on  the  ground  of  their  being  repugPxant 
to  the  constitution,  treaties  or  laws  of  the  United 
States,  and  the  decision  is  in  favor  of  such  their 
validity;  or  where  is  drawn  in  question  the  con- 
struction of  any  clause  of  the  constitution,  or  of  a 


A^T.  ITPO. 


380.  Wilson  vs.  The  Blackhird  Creek  Marsh  Association,  2  Pet. 
245.  Hiclcie  vs.  Starke,  1  Pet.  94.  Harris  vs.  Dcnnie,  3  Pet. 
292,  301.  Davis  vs.  Packard,  6  Pet.  41.  Bud  vs.  Van  Ness, 
8  Whea.  312 ;  5  Cond.  445. 

The  court  has  no  authority  to  declare  a  state  law  void,  on 
account  of  its  collision  with  a  state  constitution.  Jackson  vs. 
Lamphire,  3  Pet.  280.     McBride  vs.  Hoey,  11  Pet.  167. 

The  judgment  of  the  supreme  court  in  a  case  brought  by 
writ  of  error  from  a  state  court,  must  be  confined  to  the  error 
alleged  in  the  decision  of  the  state  court,  upon  the  construction 
of  the  act  of  congress,  before  the  state  court.  Pottard's  Lessee 
vs.  Kihbe,  14  Pet.  353. 

Tn  cases  under  the  25th  .^^ection,  the  writ  of  eiTor  may  be 
directed  to  any  court  in  which  the  record  and  judgment,  on 
which  it  is  to  act,  may  be  found ;  and  if  the  record  has  been 
remitted  by  the  highest  court,  &c.,  to  another  court  of  the  state, 
it  may  be  brought  by  the  writ  of  error  from  that  court.  Gelston 
vs.  Hoyt,  3  WTiea.  246  ;  4  Cond.  244. 

See  also  The  Passenger  Cases,  7  How.  283-573.  Mager 
vs.  Grima,  8  How.  490.  Nathan  vs.  State  nf  Louisiana,  8  How. 
73.  Doe  vs.  Eslava,  9  How.  421.  Doe  vs.  Mayor  of  Mohile, 
9  Hnw.  451.  Maf7tetrsvB.  Zanc,  7  Whea.  164;  5  Cond.  265. 
Holmes  vs.  Jcnnison,  14  Pet.  540. 

In  the  case  of  CrourU  vs.  Randall,  10  Pet.  368,  the  court 
revised  all  the  cases  on  jurisdiction  under  the  25th  section  of 
the  judiciary  act,  and  laid  down  the  law  as  they  wished  it  to 
be  universally  understood.  Chateau  vs.  JSIargucritc,  12  Pet. 
507.  510. 


124  JURISDICTION  OF  THE  FEDERAL  COURTS. 

A.T^rs9.  treaty  or  statute  of,  or  commission  held  under 
the  United  States,  and  the  decision  is  against  the 
title,  right,  privilege  or  exemption,  specially  set 
up  or  claimed  by  either  party,  under  such  clause 
of  the  said  constitution,  treaty,  statute  or  com- 
mission, may  be  re-examined  and  reversed  or 
affirmed  in  the  supreme  court  of  the  United 
States,  uprni  a  ivrit  of  error,  the  citation  being 
signed  by  the  chief  justice,  or  judge,  or  chancel- 
lor of  the  court  rendering  or  passing  the  judgment 
or  decree  complained  of,  or  by  a  justice  of  the 
supreme  court  of  the  United  States,  in  the  same 
manner,  and  under  the  same  regulations,  and  the 
writ  shall  have  the  same  effect,  as  if  the  judgment 
or  decree  complained  of  had  been  rendered  or 
passed  in  a  circuit  court,  and  the  proceeding  upon 
Court  mny  |j^g  rcvcrsal  shall  also  be  the  same :  except  that  the 
aHuiiide-  supreme  court,  instead  of  remanding  the  cause 
for  a  final  decision  as  before  provided,  may,  at 
their  discretion,  if  the  cause  shall  have  been  once 
remanded  before,  proceed  to  a  final  decision  of 
the  same,  and  award  execution.  But  no  other 
error  shall  be  assigned  or  regarded  as  a  ground 
of  reversal  in  any  such  case  as  aforesaid,  than 
such  as  appears  on  the  face  of  the  record,  and 
immediately  respects  the  before  mentioned  ques- 
tions of  validity  or  construction  of  the  said  con- 
stitution, treaties,  statutes,  commissions  or  autho- 
rities in  dispute.     Act,  1789,  ch.  20,  §  25. 


SUPREME  COURT.  125 


FKOM    CIFiCUIT    COURT,    DISTRICT    OF    COLUMBIA.  ACT.  1801. 

Any  final  judgment,  order  or  decree,(l)  in  said  -^Xdlr 
circuit  court  [of  the  District  of  Columbia,]  where-  """'■^"'" 
in  the  matter  in  dispute,  exclusive  of  costs,  shall 
exceed  the  value  of  one  hundred  dollars,  may  he 
re-examined,    and   reversed  or   affirmed   in  the 


(1)  The  supreme  court  has  jurisdiction  of  appeals  fiom  the 
orphan's  court,  through  the  circuit  court  for  the  county  of 
Washington,  by  virtue  of  tlie  act  of  1801  ;  but  by  the  act  of 
1816,  the  matter  in  dispute,  exclusive  of  costs,  must  exceed  the 
value  of  $1,000.00,  in  order  to  entitle  the  party  to  an  appeal. 
N'ichoUs  vs.  Hodges,  1  Pet.  562. 

The  plaintiff  claimed  $1,241.00,  and  laid  his  damages  at 
$1,000 .  00  :  a  general  verdict  was  given.  Held,  that  the  matter 
in  dispute  is  the  sum  claimed,  ad  quod  damnum.  The  court 
can  not  judicially  take  notice,  that  by  computation  it  may  pos- 
sibly be  made  out  as  a  matter  of  inference,  that  the  claim  may 
be  less  than  81,000.00 ;  much  less  can  it  take  notice  in  a  case 
where  the  plaintiff  mii^lit  be  allowed  interest  by  a  jury,  so  as 
to  swell  th(!  cliiini  bt'vond  that  amount.  Scott  vs.  hunt's  Adm'r, 
C  Pet.  319. 

Tlie  supreme  court  has  no  jurisdiction  of  causes  brought 
before  it,  upon  a  certificate  of  division  of  opinion  of  the  judges 
of  the  circuit  court  for  the  District  of  Columbia;  the  appellate 
jurisdiction  extends  only  to  final  judgments  and  decrees.  Ross 
vs.  Triphtt,  3  \¥hea.  600;  4  Cond.  351. 

Nor  does  an  appeal  lie,  from  such  court,  in  a  criminal  case ; 
it  is  confined  to  civil  cases.  United  States  vs.  Moore,  3  Cra. 
159  ;   1  Cond.  480. 

A  citizen  of  the  District  of  Columbia,  can  not  bring  an 
action  in  the  circuit  courts  of  the  United  States,  sitting  in  any 
of  the  states  ;  he  is  not  a  citizen  of  a  state.  Hepburn  vs.  Ell- 
zey,  2  Cra.  445  ;  1  Cond.  444.  Wescotfs  Lessee  vs.  Inhahit- 
a?its,  Sfc,  1  Pet.  C.  C.  45. 


126  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTviau.  supreme  court  of  the  United  States,  by  writ  of 
ordrcuu  ^^^^^  0^'  appeal,  which  shall  be  prosecuted  in  the 
^"'''■^"f  ^  same  manner,  under  the  same  regulations,  and 

Ihstrict  of  '  o  ' 

Columbia;  the  sauie  proceedings  shall  be  had  therein,  as  is 
or  shall  be  provided  in  the  case  of  writs  of  error, 
on  judgments  or  appeals  upon  orders  and  decrees 
rendered  in  the  circuit  courts  of  the  United  States. 
Act,  1801,  ch.  15,  §  8. 

By  a  subsequent  act,  it  is  provided  that  no 
cause  shall  hereafter  be  removed  from  said  court 
to  the  supreme  court,  by  appeal  or  writ  of  error, 
unless  the  matter  in  dispute  in  such  cause  shall 
be  of  the  value  of  one  thousand  dollars  or  up- 
wards, exclusive  of  costs. 

wijere  Provlded,  always,  that  when  any  person  or  per- 

matlerg  in  ,'  i       ii      i   •     i     i    • 

dispute  sons,  body  politic  or  corporate,  shall  think  him, 
only  10 100  her  or  themselves,  aggrieved  by  any  final  judg- 
ment, order  or  decree,  of  the  said  circuit  court, 
Avhere  the  matter  in  dispute,  exclusive  of  costs, 
shall  be  of  the  value  of  one  hundred  dollars,  and 
of  less  value  than  one  thousand  dollars,  and  shall 
have  prayed  an  appeal,  or  shall  desire  to  sue  out 
a  writ  of  error  to  the  supreme  court  of  the  United 
States,  such  person  or  persons,  body  politic  or 
corporate,  may  exhibit  a  petition  in  writing,  ac- 
companied by  a  copy  of  the  proceedings  com- 
plained of,  and  an  assignment  of  the  errors  re- 
lied on,  to  any  judge  of  the  said  supreme  court; 
who,  if  he  should  be  of  opinion  that  such  er- 
rors, or  any  of  them,  involve  questions  of  law 


SUPREME  COURT.  127 


ACT.  IMG 


sui>i  1  be- 
di  a  ■ 


of  such  extensive  interest  and  operation  as  to 
render  the  final  decision  of  them  by  the  said 
supreme  court  desirable,  may,  thereupon,  at  his 
discretion,  and  upon  the  terms  and  conditions 
prescribed  by  law,  by  his  order,  to  be  directed  to 
the  clerk  of  the  county  in  which  the  proceedings 
shall  have  been  had,  direct  such  appeal  to  be  al- 
lowed, or  writ  of  error  to  be  issued  ;  which  shall 
be  done  accordingly. 

When  the  appeal  or  writ  of  error  has  been  ^^'ll\lT 
directed,  and  the  order  filed  within  thirty  days 
after  the  rendition  of  the  judgment,  order  or  de- 
cree, such  writ  of  error,  or  appeal  operates  as  a 
supersedeas.     Act^  1816,  ch.  39. 

Appeals  also  lie  to  the  supreme  court,  in  behalf 
of  or  against  the  United  States,  from  decrees  of 
the  said  circuit  court,  insults  commenced  against 
the  United  States,  under  a  special  law,  by  those 
claiming  title  to  certain  lands  in  the  city  of 
Washington,  appropriated  by  virtue  of  an  act  of 
Congress,  in  draining  the  low  grounds,  and  orna- 
menting the  public  reservations.  Acf,  1822,  ch. 
96,  ^  9. 


FROM    TERRITORIAL    COURTS. 


The  superior  courts  of  the  several  territories  of  act^soo. 
the  United  States,  in  which  a  district  court  has  Appeiioie 

jiirisdic- 

not  been  established  by  law,  shall,  in  all  cases  in  'iij"^» 
which  the  United  States  are  concerned,  have  and 


128  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTJS05.    exercise,  within  their  respective  territories,  the 
superior     saine  iurisdictlon  and  powers  which  are  by  law 

courts  of  '^  ^  •' 

terrjtoiies.  given  to,  or  may  be  exercised  by,  the  district 
court  of  Kentucky  district ;  and  writs  of  error  and 
appeals  shall  lie,  from  decisions  therein,  to  the 
supreme  court,  for  the  same  causes,  and  under 
the  same  regulations,  as  from  the  said  district 
court  of  Kentucky.    Act  1805,  ch.  38. 

ACTJ7S9.  rpj^g  jurisdictlou  of  the  district  court  of  Ken- 
tucky, above  referred  to,  is  defined  by  the  judici- 
ary act,  where  it  is  provided,  "  that  the  district 
court  in  Kentucky  shall,  besides  the  jurisdiction 
given  in  the  act,  have  jurisdiction  of  all  other 
causes,  except  appeals  and  writs  of  error,  cogni- 
zable in  a  circuit  court,  and  shall  proceed  therein 
in  the  same  manner  as  a  circuit  court ;  and  writs 
of  error  and  appeals  shall  lie  from  decisions 
therein  to  the  supreme  court,  in  the  same  causes, 
as  from  a  circuit  court  to  the  supreme  court,  and 
under  the  same  regulations.    Act  1789,  ch.  20,  §  10. 

ACT  1S47.        By  an  act  of  1847,  it  was  provided  that  the 

In  cases  dlstrict  court  of  Florida  should  take  cognizance 
of  all  cases  pending  and  undetermined  in  the 
court  of  appeals  of  the  late  territory  of  Florida, 
in  which  writs  of  error,  or  appeals,  could  have 
been  taken  to  the  supreme  court  of  the  United 
States ;  and  writs  of  error,  and  appeals,  were  to 
lay  to  the  supreme  court  from  the  judgments  and 
decrees  of  the  district  court  in  such  cases,  in  the 
same  manner  as  if  such  judgments  or  decrees 


to  district 
courts. 


SUPREME  COURT.  129 


had  been  made  by  said  court  of  appeals.     Act    actuw. 
1847,  ch.  17,  §4.  ^--' 

The   same   act   extended   these  provisions  to  which  ap- 
cases  pending  in  the  com-ts  of  Michigan;  and  a  J^i;;.^'"'' 
later  act  extended  them  to  cases  pending  in  the 
courts  of  Iowa.     Act  1848,  ch.  12,  §  1. 

These  provisions  have  now  been  made  perpe-  acivi848. 
tual,  as  follows  :  All  and  singular  the  provisions 
of  the  said  act  (Act  1847,  ch.  17),  to  which  this 
act  is  a  supplement,  so  far  as  may  be,  shall  be, 
and  they  are  hereby  made  applicable  to  all  cases 
which  may  be  pending  in  the  supreme  or  other 
superior  court  of  and  for  any  territor}^  of  the 
TTnited  States,  which  may  hereafter  be  admitted 
as  a  state  into  the  Union,  at  the  time  of  its  ad- 
mission, and  to  all  cases  in  which  judgments  or 
decrees  shall  have  been  rendered  in  such  supreme 
or  superior  court  at  the  time  of  such  admission, 
and  not  previously  removed  by  writ  of  error  or 
appeal.     Act  1848,  ch.  12,  §  2. 

The  above  are  the  only  general  laws  in  respect 
to  appeals  and  writs  of  error  to  the  supreme  court 
from  the  courts  of  the  difierent  territories.  In 
the  case  of  the  individual  territories,  the  enact- 
ments are  as  follows:  — 

OREGON. 

Writs  of  error  and  appeals  from  the  final  deci-       _ 
sions  of  the  supreme  court  of  said  territory,  shall  ]t?fsaiv-° 
be  allowed,  and  may  be  taken  to  the  supreme  """''^°'" 

9 


130 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


supreme 
court  of 
territory 
of  Oregon, 


ACT.  181?  court  of  the  United  States,  in  the  same  manner 
as  from  the  circuit  courts  of  the  United  States, 
where  the  value  of  the  property,  or  the  amount 
in  controversy,  shall  exceed  two  thousand  dol- 
lars, and  in  all  cases  where  the  constitution  of 
the  United  States,  or  acts  of  congress,  or  a  treaty 
of  the  United  States,  is  brought  in  question.  Act 
1848,  ch.  177,  §9. 


MINESOTA. 


ACT,  1849. 


Writs  of  error  and  appeals  from  the  final  de- 
Appeiiate  cisious  of  Said  supreme  court  (of  said  territory,) 
lion  from    shall  bc  allowcd,  and  may  be  taken  to  the  supreme 

supreme  '  w  x 

court  of      court  of  the  United  States,  in  the  same  manner 

territory 

ofMineso-  and  uudcr  the  same  regulations  as  from  the  cir- 

ta.  ^ 

y  cuit  courts  of  the  United  States,  where  the  value 

of  the  property,  or  the  amount  in  controversy,  to 
be  ascertained  by  the  oath  or  affirmation  of  either 
party,  or  other  competent  Avitness,  shall  exceed 
one  thousand  dollars.     Act,  1849,  ch.  121,  §  9. 


UTAH. 


ACT,  1850. 

Appellate 
jurisdic- 
tion from 
supreme 
court  of 
territory 
of  Utah : 

In  cases 

iuvolvincr 


Writs  of  error  and  appeals  lie  from  the  supreme 
court  of  this  territory  to  the  supreme  court  of  the 
United  States,  under  the  same  limitations  and 
conditions  as  are  prescribed  for  the  territory  of 
Minesota  (above  quoted)  with  the  following  ad- 
dition :  "  Except  only  that  in  all  cases  involving 
title  to  slaves,  the  said  Avrits  of  error  or  appeals 


SUPREME  COURT.  131 


shall  be   allowed   and    decided  by  the  supreme    actvis^m 
rourt,  without  re^^ard  to  the  value  of  the  matter,  tiH'-  <" 

'  "  slaves  and 

nropertv  or  title  in  controversy:  and  except,  also,  questions 

I        r         J  '  «t  personal 

that  a  writ  of  error  or  appeal  shall  also  be  allowed  iVeidom. 
to  the  supreme  court  of  the  T^nited  States,  from 
the  decisions  of  the  supreme  court  of  the  territory, 
or  of  any  jud^e  thereof,  or  of  the  district  courts 
of  the  territory,  or  of  any  judge  thereof,  upon  any 
writ  of  habeas  corpus  involving  the  question  of 
personal  freedom.     Act,  1850,  ch.  51,  §  9. 


NEW    MEXICO. 


The  same  enactment  as  for  Utah.     Act,  1850,    actm^ 
ch.  49,  vS  10. 


JURISDICTION 


FEDERAL  COURTS  OF  THE  UNITED  STATES. 


CIRCUIT    COURTS. 


CIRCUIT    COURTS 


ORGANIZATION  AND  ADJOURNMENT  OP. 


ACTS,  17o9, 


The  circuit  courts  (1)  for  the  different  districts,    i793ri8o-2 
consist  of  a  justice  of  the  supreme  court,  and  the  circuit 


(1)  A  contemporary  exposition  of  the  constitution,  practised 
and  acquiesced  in  for  a  number  of  years,  fixes  the  construction. 
As  the  justices  of  the  supreme  court  have  sat  as  circuit  judges 
from  the  time  of  the  first  organization  of  the  judicial  system, 
they  may  lawfully  do  so,  without  having  distinct  commissions 
for  that  purpose.     Stuart  vs.  Laird,  1  Cra.  299  ;  1  Cond.  316. 

The  circuit  court  consists  of  two  judges,  any  one  of  whom 
is  capable  of  performing  judicial  duties.  So,  the  supreme 
court  consists  of  seven  (now  nine)  judges,  any  four  (five)  of 
whom  may  act.  It  has  never  been  supposed  that  the  death  of 
three  (four)  of  the  judges  would  disqualify  the  remaining  four 
(five)  from  discharging  their  official  duties,  until  the  vacancies 
were  filled.  There  is  nothing  in  the  peculiar  phraseology  of 
that  part  of  the  judicial  act,  which  establishes  the  circuit  courts, 
that  reiiuires  a  different  construction  of  the  words  authorizing 
a  single  judge  to  hold  those  courts,  from  what  is  usually  given 
in  other  cases  to  clauses  authorizing   a  specified  number  of 


courts 
bow  com- 
posed. 


136  JURISDICTION  OF  THE  FEDERAL  COURTS. 


\^^'\m^'  district  judge  of  such  district ;  but  no  district 
judge  can  give  a  vote  in  any  case  of  appeal  or 
writ  of  error  from  his  own  decision,  but  may 
assign  the  reasons  of  such  his  decision.  The 
supreme  court  may,  however,  direct  two  of  its 

Two  jnsti-    .         .  .  . 

ces  may      iusticcs  to  hold  a  circuit  court,  in  cases  where 
hold.  '^        ,         ,  ' 

special  circumstances  shall,  in  their  judgment, 

render  the  same  necessary.     When  only  one  of 


justices  to  constitute  a  court.     Pollard  and  Picheft  vs.  Dwight 
ct  ah.,  4  Cra.  421 ;  2  Cond.  157. 

If  a  vacancy  occur  by  the  death  of  the  justice  of  the  supreme 
court,  to  whom  any  circuit  was  allotted,  the  district  judge  may 
discharge  the  official  duties,  except  that  he  can  not  sit  upon  a 
writ  of  error  from  a  decision  in  the  district  court.  Pollard  y%. 
DwigJu,  4  Cra.  421 ;  2  Cond.  157.  United  States  vs.  Lancaster, 
5  Whea.  434 ;  4  Cond.  720. 

The  district  judge  may  alone  hold  a  circuit  court,  although 
there  be  no  judge  of  the  supreme  court  allotted  to  the  circuit. 
Pollard  vs.  Dwight,  4  Cra.  421 ;  2  Cond.  157. 

When  a  district  judge  docs  not  judicially  sit  in  a  cause  in 
the  circuit  court,  he  is  considered  as  absent  in  contemplation 
of  law,  within  the  meaning  of  the  act  of  1793,  eh.  22,  §  1, 
though  he  be  on  the  bench.  Bingham  vs.  Cabot,  3  Dall.  19 ; 
1  Cond.  13. 

It  is  not  necessary  to  state  in  the  record  of  a  case  in  the 
circuit  court  the  absence  of  the  district  judge.  It  is  sufficient 
to  state  that  he  did  not  tit  in  the  cause.  Although  the  judge 
was  present  on  the  bench,  yet  if  he  did  not  sit  in  the  cause,  he 
was  absent  in  contemplation  of  law.  Bingham  vs.  Cabot,  3 
Dall.  19;   1  Cond.  13,  17. 

The  district  judge  can  not  sit  in  the  circuit  court  in  a  cause 
brought  by  writ  of  error  from  the  district  to  the  circuit  court. 
United  States  vs.  Lancaster,  5  Whea.  434 ;   4  Cond.  720. 


CIRCUIT  COURTS.  137 


the  said  judges  shall  attend,  the  court  may  be  ^'^Jf,^• 
held  by  the  judge  so  attending.     Act.%  1793,  c/i.       ~ 
22,  §  1 ;   1789,  ch.  20,  §  4  ;   1802.  ch.  31,  §  4. 

The  justice  of  the  supreme  court  is  not  required,    ^^^"' 
however,  to  attend  more  than  one  term  of  a  cir-  l^^'-l'Jl^^^ 
cult  court  in  any  one  year.     Such  term  is  desig-  jy^tK^Ter 
naled  by  him:   and  at  such  term,  appeals  and 
writs  of  error  from  the  district  court,  questions 
of  law  arising  upon  statements  of  fact  agreed  by 
the  parties,  or  specially  reserved  by  the  district 
judge,  and  cases  at  law  and  in  equity  of  peculiar 
interest  or  difficulty,  shall  have  precedence.     Acty 
1844,  ch.  96,  §  2. 

The  circuit  courts  held  their  sessions  at  the    act,  1:93. 
times  and  places  prescribed   by  law.     But  the  ^erl^of 
supreme  court,  or  when  that  court  is  not  in  ses-  ^"!^  >."  , 
sion,  one  of  the  justices  thereof,  together  with  ^^^es. 
the  district  judge,  may  direct  special  sessions  of 
the  circuit  courts,  for  the  trial  of  criminal  causes, 
at  any  convenient  place,  nearer  Avhere  the  offen- 
ces were  committed,  than  the  place  of  the  hold- 
ing of  the  ordinarv  sessions  of  such  courts.     Act, 
1793,  ch.  22,  §  3.     Special  sessions  may  also  be    act^'^io. 
appointed  by  the  presiding  judge,  and  such  ses- 
sions have  the  same  powers  as  the  stated  terms. 
Act,  18  10,  ch.  43,  §  2. 

For  times  when  the  circuit  courts  hold  their 
sessions,  see  Appendix. 

Where  neither  of  the  judges  of  circuit  court    ^^^^^^ 
attend  at  the  commencement  of  a  stated  or  ad-   ^fli^"^; 

meut  of. 


138  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTU843.   journecl  session  thereof,  to  open  and  adjourn  the 

terms  of.     court  in  pcrson,  either  of  such  judges  may,  by  a 

written  order  to  the  marshal,  adjourn  said  court 

to  any  time  antecedent  to  the  next  stated  term. 

Acf,  1840,  ch.  43,  §  1.     Whenever  there  is  a  "  con- 

ACTS  179". 

1839.  "  tagious"  or  a  " dangerous  and  general"  disease 
at  the  place  where  the  circuit  courts  are  usually 
holden,  the  judges  may  adjourn  the  same  to  some 
convenient  place  within  the  district ;  or  may,  by 
an  order  to  the  clerk,  adjourn  the  same  to  some 
future  day,  specified  in  such  order.  Act,  1799, 
ch.  12,  §  7 ;  Act,  1839,  ch.  3,  §  9. 


JURISDICTION 


FEDERAL    COURTS. 


CIRCUIT    COURTS. 


GENERAL    JURISDICTION.(a) 


The  circuit  courts   shall  have  original  co^^ni-    Acr.nbo 


O""""     ^"&* 


zance  concurrent  with  the  courts  of  the  several 

(a)  In  order  to  maintain  a  suit  in  a  circuit  court,  the  juris- 
diction must  appear  on  the  record.  Sullivan  vs.  The  Fulton 
Steamboat  Company,  6  Whea.  450  ;  5  Cond.  135.  Emory  vs. 
Greenovgh,  3  Dall.  369.  Bingham  vs.  Cabot,  3  Dall.  382 ;  1 
Cond.  170.  Ttirncr  vs.  Enrille,  4  Dall.  7;  1  Cond.  205. 
Abercromhie  vs.  Dvjmis,  1  Cra.  343  ;  1  Cond.  327.  Wood  vs. 
Wagnon,  2  Cra.  9  ;  1  Cond.  335.  Capron  vs.  Van  Norden,  2 
Cra.  126  ;  1  Cond.  370.  Catlett  vs.  Pacijic  Ins.  Co.,  1  Puine, 
594.     D'  Wolf  vs.  Harris,  4  Mason,  515. 

The  circuit  courts  of  the  United  States,  sitting  in  the  states 
of  the  Union,  have  no  jurisdiction  in  a  case  in  which  a  citizen 
of  the  District  of  Columbia  is  plaintiff.  Wcscott's  Lessee  vs. 
InJuibitants,  ifc,  1  Pet.  C.  C.  Rep.  45. 

All  the  cases  arising  under  the  laws  of  the  United  States  are 
not,  per  sc,  among  the  cases  comprised  within  the  jurisdiction 


Circuit 

court. 

Geaered, 


140  JURISDICTION  OF  THE  FEDERAL  COURTS 

ACT^789  states,  of  all  suits  (1)  of  a  civil  nature  at  common 
origiuai,  law  or  in  equity,  where  the  matter  in  dispute 
exceeds,  exclusive  of  costs,  the  sum  or  value  of 
five  hundred  dollars,  and  the  United  States  are 
plaintiffs  or  petitioners;  or  an  alien  is  a  party,(2) 
or  the  suit  is  between  the  citizen  of  the  state 
where  the  suit  is  brought,  and  a  citizen  of  another 

of  the  circuit  court,  under  the  proA^sions  of  section  11  of  the 
judiciary  act.     P.  M.  General  vs.  Stockton,  12  Pet.  524. 

Where  the  jurisdiction  has  once  attached,  no  subsequent 
change  in  the  relation  or  condition  of  the  parties  will  oust  that 
jurisdiction.  United  States  vs.  Myers,  2  Mar.  Dec.  516.  Mor- 
gan vs.  Morgan,  2  Whea.  290  ;  4  Cond.  121.  Mollan  vs.  Tor- 
rance, 9  Whea.  537 ;  5  Cond.  666.  Dunn  vs.  Clarlc,  8  Pet.  1. 
Clark  vs.  Matthewson,  12  Pet.  165. 

(1)  The  amount  laid  in  the  declaration,  is  the  sum  in  con- 
troversy. If  upon  the  trial  the  demandant  recovers  less,  the 
jurisdiction  is  not  affected.  Green  vs.  Liter,  8  Cra.  229  ;  3 
Cond.  97,  100.  Den  vs.  WrigJit,  1  Pet.  C.  C.  64,  73.  Sher- 
man, vs.  Clark,  3  M'Lean,  91.     Muns  vs.  Dupont,  2  Wash.  463. 

And  that  whether  it  be  an  original  suit  in  the  circuit  court, 
or  brought  by  petition  fi'om  a  state  court.  Gordon  vs.  Longest, 
16  Pet.  97,  104. 

In  cases  of  concurrent  jurisdiction  in  the  state  court  and  the 
circuit  court  of  the  United  States,  the  latter  has  no  discretion- 
ary authority  to  stay,  or  control  the  suit,  or  to  refuse  jurisdic- 
tion, in  order  to  prevent  a  collision  between  the  two  courts. 
Wadleigh  vs.  Veazie,  3  Sum.  165. 

See  also,  Tohey  vs.  County  of  Bristol,  3  Story,  800, 

(2)  Where  both  parties  are  aliens  in  a  civil  suit  at  common 
law  or  in  equity,  the  courts  of  the  United  States  have  no  juris- 
diction. Montalet  vs.  Murray,  4  Cra.  46 ;  2  Cond.  19.  Hodg- 
son and  Thompson  vs.  Bowerbank,  5  Cra.  303  ;  2  Cond.  265. 
Mossman  vs.  Higginson,  4  Dall.  12;  1  Cond.  210, 


CIRCUIT  COURTS.  HI 


state.     And  shall  have  (3)  cxclus'tm  cognizance  of   act^itm. 
all  crimes  and  offences  coornizable  under  the  au-  'xdiuive, 

^  uuil  cou- 

But  the  courts  will  entertain  jurisdiction  of  a  cause  where 
all  the  parties  are  aliens,  if  none  of  them  object  to  it.  Mason 
vs.  Ship  Blaireau,  2  Cra.  240  ;  1  Coutl.  397,  402. 

All  the  i^arties  on  each  side  must  be  subject  to  the  jurisdiction, 
or  the  suit  will  be  discontinued.  Corporation  of  New-Orleans 
vs.  Winter,  1  Whea.  91;  3  Cond.  499.  Strawbridgc  vs.  Curtis, 
3  Cra.  267  ;  1  Cond.  523.     Ward  vs.  Arredondo,  1  Paine,  410. 

But  where  the  parties  to  a  suit  are  such  that  the  federal 
courts  can  entertain  jurisdiction,  it  matters  not  whether  they 
are  administrators,  executors,  or  trustees,  and  whether  those 
whom  they  represent  are  citizens  of  the  same  state.  Cliappe- 
deluinc  vs.  DecJieneau,  4  Cra.  306  ;  2  Cond.  116.  Childress  \s. 
Emory,  8  Wliea.  642  ;  6  Cond.  547.  Broun  vs.  Strode,  5  Cra. 
303 ;  2  Cond.  265.  Briggs  vs.  French,  2  Sum.  252.  United 
Stales  vs.  Meyers,  2  Mar.  Dec.  516. 

Where  neither  of  the  parties  in  the  suit  are  citizens  of  the 
state  in  which  the  action  is  instituted,  the  circuit  court  has  no 
jurisdiction.     Shttte  vs.  Davis,  1  Pet.  C.C.  431. 

A  deed  executed  for  the  purpose  of  giving  jurisdiction  to 
the  federal  courts,  will  not  be  contenanced  so  as  to  sustain  the 
jurisdicti<jn.     Ili/rst  vs.  McNeil,  1  Wash.  70. 

The  circuit  courts  have  not  jurisdiction  of  suits  brought  by 
a  state  against  citizens  of  the  same  or  of  some  other  state. 
Gale  vs.  Bahcock,  4  Wash.  199.  See  also,  Dai  vs.  N.Jersey, 
Ibid.  344. 

(3)  The  exclusive  jurisdiction  of  the  circuit  court  in  criminal 
cases  is  now,  by  the  act  of  1842,  ch.  188,  §3,  confined  to  capital 
cases. 

The  circuit  courts  have  coofnizance  of  all  offences  asfaiust 
the  United  States.  What  those  offences  are,  depends  upon  the 
common  law  applied  to  the  sovereignty  and  authorities  confided 
to  the  United  States.  United  States  vs.  Coolidge,  1  Clall.  488, 
495.    Overruled  by  the  supreme  court,  in  1  Whea.  415,  3  Cond. 


142  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTvi-sg.   thority  of  the  United  States,  except  where  this 
currentju-  act  otherwisc  provides,  or  the  laws  of  the  United 

risdictiou 

"i;  States  shall  otherAvise  direct,  and  concurrent  juris- 

incrimi-     diction  with  the  district  courts  of  the  crimes  and 

No  person  ofTcnces  cognizablc  therein.    But  no  person  shall 

be  arrested  (4)  in  one  district  for  trial  in  another, 

in  any  civil  action  before  a  circuit  or  district 


613,  on  the  authority  of  United  States  vs.  Hudson  Sf  Goodwin, 
7  Cra.  32  ;  2  Cond.  405 ;  though  the  majority  of  the  court 
were  willing  to  hear  the  argument  upon  the  constitutional 
question ;  but  no  counsel  appeared  for  the  defendant,  and  the 
attorney-general  regarded  the  point  as  settled  by  the  decision 
in  7  Cranch.  In  the  judgment,  however,  in  1  Wlieaton,  the 
point  is  regarded  as  unsettled.  See  United  States  vs.  Bevan, 
3  Whea,  336 ;  4  Cond.  275.  United  States  vs.  Wiltberger,  5 
Whea.  76  ;  4  Cond.  593.  Smith  vs.  Jackson,  1  Paine,  453.  1 
Kent's  Com.  334-343. 

The  circuit  coui'ts  have  jurisdiction  of  a  robbery  committed 
on  the  high  seas,  under  the  act  1790,  ch.  9,  §  8,  although  such 
robbery,  if  committed  on  land,  could  not  be  punished  with 
death.      United  States  vs.  T aimer,  3  Whea.  610  ;   4  Cond.  352. 

And  of  a  robbery  committed  on  the  effects  of  a  ship,  under 
the  act  of  1825,  ch.  Q>5,  §  9.  United  States  vs.  Coombs,  12  Pet. 
72. 

The  circuit  courts  are  bound  to  try  all  crimes  committed 
within  the  district,  which  are  duly  presented  before  it ;  but  not 
to  try  them  in  the  county  where  they  have  been  committed. 
United  States  vs.  Wilson,  Bald.  78. 

The  circuit  courts  have  no  original  jurisdiction  in  suits  for 
penalties  and  forfeitures  arising  under  the  laws  of  the  United 
States  ;  the  district  courts  have  exclusive  jurisdiction.  Ketland 
vs.  The  Cassius,  2  Dall.  365. 

(4)  Neither  the  circuit  or  district  courts,  either  in  suits  at 
law  or  equity,  can  send  their  process  into  another  district. 


CIRCUIT  COURTS.  143 


court.     And  no  civil  suit  shall  be  brought  before    actj7w. 

either  of  said  courts  aojainst  an  inhabitant  of  the  seated  out 

*^  nf  th..'  dis- 

united States,  by  any  original  process  in   any  ^'''^^i 

other  district  than  that  whereof  he  is  an  inhabi- 
tant, or  in  which  he  shall  be  found  at  the  time  of 
serving  the  writ,  nor  shall  any  district  or  circuit 

.    .  .  p  .  In  suits  on 

court  (5)  nave  cognizance  01  any  suit  to  recover  promis- 

except  where  specially  authorized  by  congress.  Ex  parte 
GraJiUJn,  3  Wash.  456. 

Nor  can  judgment  be  rendered  against  any  defendant  not 
served  with  process  issued  against  his  person  in  the  manner 
pointed  out  by  the  judiciary  act,  unless  the  defendant  waive 
the  necessity  of  such  process  by  appearance.  Levy  vs.  Fitz- 
patrick,  15  Pet.  167.     TolanA  vs.  Sprague,  12  Pet.  300. 

The  11th  section  of  the  judiciary  act,  which  relates  to  the 
service  of  process,  does  not  amount  to  an  exception  from  the 
general  grant  of  jurisdiction,  but  secures  to  parties  residing 
out  of  the  district  in  which  the  suit  is  brought,  a  privilege  of 
not  being  liable  to  be  sers'ed  with  process  out  of  the  district  in 
which  they  reside,  or  of  being  compelled  by  such  service  to 
appear  in  any  other  district.  But  this  exemption  may  be 
waived  by  a  voluntary  appearance  of  the  party.  But  if  the 
party  plead  the  benefit  of  the  privilege,  and  the  cause  is  set 
down  for  a  hearing,  the  docket  entries  showing  a  prior  appear- 
ance by  a  solicitor  of  the  court,  can  not  be  taken  notice  of 
Harrison  vs.  Rowan,  Pet.  C.  C.  480,  481,  482,  483.  See  also, 
Piquet  vs.  Swan,  5  Mason,  35. 

But  appearance  is  a  waiver  of  objection  to  the  jurisdiction. 
FoUiird  vs.  Dwiglit,  4  Cra.  421 ;  2  Cond.  157.  Logan  vs.  Fat- 
rick,  5  Cra.  288  ;  2  Cond.  259.  Grade  vs.  Fahncr,  8  Whea. 
699  ;  5  Cond.  561.  Flanders  vs.  Etna  Ins.  Company,  3  Mason, 
158.     Harrison  vs.  Rowan,  1  Pet.  C.  C.  489. 

(5)  Tlie  circuit  court,  notwithstanding  the  restrictive  clause 
in  the  11th  section  of  the  act  of  1789,  has  jurisdiction  in  a  suit 


144  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTvi;89.   f]jQ   contents  of  any  promissory  note   or  other 
sory  notes  chosc  in  action  in  favor  of  an  assignee,  unless  a 

l)y  an  as- 

8igi.ee.  . — 

in  equity  brought  by  a  jutlgment  creditor  against  his  debtor 
and  others,  they  being  citizens  of  difterent  states,  to  set  aside 
conveyances  made  in  fraud  of  creditors,  although  the  ground 
of  the  judgment  was  a  negotiable  chose  in  action,  on  which, 
before  judgment,  a  suit  could  not  have  been  maintained  in  such 
court.     Bean  vs.  Smith,  2  Mason,  252. 

Such  restriction  does  not  apply,  either  directly  or  construc- 
tively, to  a  conveyance  of  lands  from  a  citizen  of  one  state  to 
a  citizen  of  another  state.  Briggs  vs.  French,  2  Sum.  251  : 
questioning  the  decisions  in  Maxwell's  Lessee  vs.  Levy,  2  Dall. 
381.  S.  C.  4  Dall.  330,  and  Hiirsfs  Lessee  vs.  McNeil,  1  Wash. 
70,  83. 

The  circuit  court  has  jurisdiction  of  a  suit  brought  by  the 
endorsee  of  a  promissory  note,  who  is  a  citizen  of  one  state, 
against  the  endorser,  who  is  a  citizen  of  a  different  state,  whe- 
ther a  suit  could  be  brought  in  that  court  by  the  endorsee, 
against  the  maker,  or  not.     Young  vs.  Bryan,  6  Wliea.  146  ; 

5  Cond,  44. 

An  endorsee,  being  a  resident  of  a  different  state,  may  sue 
in  the  circuit  court,  his  immediate  endorser  residing  in  the 
state  where  suit  is  brought,  though  the  endorsee  reside  in  the 
same  state  with  the  maker.  Mollan  vs.  Torrance,  9  Whea. 
537  ;   5  Cond.  6G6. 

Whore  suit  is  brought  against  a  remote  endorser,  the  plain- 
tiff, tracing  title  through  an  intermediate  endorser,  must  show 
that  such  intermediate  endorser  could  sustain  an  action  in  the 
circuit  court.     Ibid. 

A  general  assignee  of  the  effects  of  an  insolvent  debtor  can- 
not  sue  in  the  federal  courts,  under  the  lllh  section,  if  his 
assignor  could  not  have  sued  in  thole  courts.     Se7-e  vs.  Pitot, 

6  Cra.  332 ;  2  Cond.  389. 

The  circuit  courts  have  no  cognizance  of  a  suit  to  recover 
the  contents  of  a  promissory  note,  or  other  chose  in  action,  in 


CIRCUIT  COUIITS.  145 


suit  might  have  been  prosecuted  in  such  court  lo    '^<  ^"-s- 
recover  the  said  contents,  if  no  assignment  had 
had  been  made,  except  in  cases  of  foreign  bills 
of  exchange.     Acf,  1789,  c/i.  20,  ^^  1 1. 

OVER  CAUSES  REMOVED  FROM  STATE  COURTS  :  WHERE 
SUIT  IS  BROUGHT  AGAINST  AN  ALIEN,  OR  A  CITIZEN 
OF    ANOTHER    STATE. 

If  a  suit  be  commenced  in  any  state  court  (1)    Acr^m 
against  an  alien,  or  by  a  citizen  of  the  state  in  Removal 

iiliauses 

favor  of  an  assignee,  unless  such  suit  might  have  been  prose- 
cuted in  such  court,  if  no  assignment  had  been  made,  except  in 
cases  of  foreign  bills  of  exchange.  Gibson  vs.  Chew,  16  Pet. 
315.     Droomgoh  vs.  Far.  8f  McrcJi.  Bank,  2  How.  241. 

Wliere  the  parties  to  a  note  reside  in  the  same  slate,  at  the 
time  of  making  the  note,  and  the  payee  afterwards  removes  to 
another  state,  and  transfers  the  note  to  a  citizen  of  that  state, 
the  assignee  may  maintain  an  action  thereon.  The  payee 
liimself  could  have  prosecuted,  had  no  assignment  been  made. 
Kirlcman  vs.  ITamilton,  6  Pet.  20,  25. 

A  note  payable  to  A,  or  bearer,  is  payable  to  any  body,  and 
is  not  affected  by  the  disabilities  of  the  nominal  payee.  Bank 
ofKnitucJaj  vs.  Wisier,  2  Pet.  318,  326.  Sinith  vs.  CIujU^,  15 
Pet.  125,  129.      Wood  vs.  Dutnmer,  3  Mason,  SOS. 

The  a.ssigneo  of  a  bailbond  is  not  such  an  assignee  as  is  con- 
t»^mplated  by  the  11th  section.  Bohyshall  vs.  Oj)cn/icimer,  4 
Wash.  482. 

(1)  The  judge  of  a  stale  court,  to  which  an  application  is 
made  for  the  removal  of  a  cause  into  a  court  of  the  United 
States,  must  exercise  a  legal  discretion  as  to  the  right  claimed 
to  remove  the  cause.  The  defendant  being  entitled  lo  a  right 
to  have  the  cause  removed,  under  the  law  of  the  United  States, 
on  the  facts  of  the  case,  the  judge  of  the  stale  court   has  no 

10 


146  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTU7S9.   which  the  suit  is  brought  against  a  citizen  of 
from  state   auothcr  statc,  and  the  matter  in  dispute  exceeds 

courts 

brought — 

discretion  to  withhold  the  I'ight.     Gordon  vs.  Longest,  16  Pet. 

97,  104. 

The  application  having  been  made  in  the  proper  form,  and 
no  objection  having  been  made  to  the  facts  on  which  it  was 
founded,  it  was  the  duty  of  the  state  court  "to  proceed  no  fur- 
ther in  the  cause;"  and  every  step  subsequently  taken  in  the 
exercise  of  a  jurisdiction  in  the  case,  coram  non  judice.    Ibid. 

One  great  object  in  the  establishment  of  the  courts  of  the 
United  States,  and  regulating  their  jurisdiction,  was  to  have  a 
tribunal  in  each  state,  presumed  to  be  free  from  local  influence ; 
and  to  which  all  who  were  now  residents  or  aliens  might  resort 
for  legal  redress.  And  this  object  would  be  defeated,  if  a  state 
judge,  in  the  exercise  of  his  discretion,  may  deny  to  the  party 
entitled  to  it,  a  removal  of  the  cause.     Ihid. 

Where  there  are  several  defendants  entitled  on  appearance 
to  remove  a  cause  to  a  circuit  court  from  the  state  court,  and 
some  have  appeared  and  some  have  not,  those  who  have  ap- 
peared can  not  alone  remove  the  cause.  Ward  vs.  Arredondo, 
Paine,  410. 

But  this  rule  only  applies,  where  the  judgment  or  decree 
must  be  joint.     Ihid. 

Defendants  can  remove  the  cause,  or  ap];)ear  in  the  circuit 
court  at  different  times,  where  their  appearance  is  entered  at 
different  times  in  the  state  court.     Ihid.  415. 

Where  some  of  the  defendants  have  removed  the  cause,  the 
others  can  not  enter  an  original  appearance  in  the  court  above. 
Ihid.  415. 

The  circuit  court  can  remand  the  cause  if  all  the  defendants 
do  not  originally  appear.     Ihid. 

The  application  to  remove  the  cause  must  be  made  at  the 
time  of  entering  an  appearance  in  the  state  court.    Ihid.  415. 

In  order  to  remove  a  cause  from  the  state  to  the  circuit 
court,  all  the  defendants  must  join  in  the  petition  for  removal. 


I 


CIRCUIT  COURTS.  \.\' 


the  sum  or  value  of  five  hundred  dollars,  cxclu-    act,  irw 
sive  of  costs,  to  be  made  to  appear  to  the  satis-  acaiLst  aa 
faction  of  the  court;  and  the  defendant  shall,  at  citizen  of 
the  time  ot  entermg  his  appearance  in  such  state  state; 
court,  file  a  petition  for  the  removal  of  the  cause 
for  trial  into  the  next  circuit  court,  to  be  held  in 
the  district,  where  the  suit  is  pending,  or  if  in  the 
Kentucky  district^  to  the  district  court  next  to  he  holden 

It  can  not  be  removed  as  to  some  of  the  defendants,  and  left 
depending  in  the  state  court  as  to  others.  Smith  vs.  Rines,  2 
Sum.  338,  347-355.    Bcardsley  vs.  Torrcij,  4  Wash.  286,  288. 

If  a  cause  be  removed  from  a  state  court  by  a  defendant, 
and  the  phiintift"  declares  in  the  circuit  court  for  more  than 
five  hundred  dollars,  the  plaintift"  can  not,  by  a  release  of  part 
of  his  debt  so  as  to  reduce  it  to  less  than  five  hundred  dollars, 
take  away  the  jurisdiction  of  the  circuit  court.  Wright  vs. 
Wells,  Pet.  C.  C.  220. 

Such  cases  only  are  liable  to  be  removed  from  the  state  to 
a  circuit  court,  as  might,  under  the  law  or  constitution  of  the 
United  States,  have  been  brought  before  the  circuit  court  by 
original  process.  Smith  vs.  Rines,  2  Sum.  338,  345.  Bcardsley 
vs.  Torrey,  4  AVash.  286. 

Though  this  section  authorises  the  removal  of  a  suit  against 
an  alien,  it  must  be  limited,  in  conformity  to  the  constitution, 
to  cases  in  which  a  citizen  is  a  plaintifl'.  Conk.  Tiea.  edit. 
1842,  69. 

Where  a  defendant  had  suflered  two  terms  to  intervene 
between  the  time  of  his  ;i])pearance  and  his  petition  for  remo- 
val, the  circuit  court  remanded  the  cause.  Gihsun  vs.  Johnson, 
1  Pet.  C.  C.  44. 

Causes  improperly  removed  will  aLso  be  remanded.  Pollard 
vs.  Dwight,  4  Cra.  421  ;  2  Cond.  157.  Wright  vs.  Wells,  1 
Pet.  C.  C.  220. 


148 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


surety  ou ; 


ACT,  1789.  therein,  (this  last  paragraph  may  be  regarded  as 
being  applicable  to  those  states  in  which  the  dis- 
trict courts  have  circuit  court  powers,)  and  offer 
good  and  sufficient  surety  for  his  entering  in  such 
court,  on  the  first  day  of  the  session,  copies  of 
said  process  against  him,  and  also  for  his  there 
appearing  and  entering  special  bail  in  the  cause, 
if  special  bail  was  originally  requisite  therein,  it 
shall  then  be  the  duty  of  the  state  court  to  accept 
the  surety,  and  proceed  no  farther  in  the  cause, 
and  any  bail  that  may  have  been  originally  taken 
shall  be  discharged,  and  the  said  copies  being 
entered  as  aforesaid,  in  such  court  of  the  United 
States,  the  cause  shall  then  proceed  in  the  same 
manner  as  if  it  had  been  brought  there  by  origi- 
nal process.  And  any  attachment  of  the  goods 
homVoods  ^^^  estate  of  the  defendant,  by  the  original  pro- 
cess, shall  hold  the  goods  or  estate  so  attached 
to  answer  the  final  judgment,  in  the  same  man- 
ner as  by  the  laws  of  such  state  they  would  have 
been  holden  to  answer  final  judgment,  had  it 
been  rendered  in  the  court  in  which  the  suit 
commenced.     Act,  1789,  ch.  20,  §  12. 


bail  to  be 
discharg- 
ed : 


Attach- 
ment to 


CIRCUIT  COURTS.  149 


WHERE    LAND    IS    CLAIMED    UNDER    GRANTS    FROM 
DIFFERENT    STATES. 

If  ill   any  action  (1)   commenced   in  a  state   act,  17*9. 
court,   the  title  of  land   be  concerned,  and  the  Removal 
parties  are  citizens  of  the  same  state,  and  the  'irom^^taxe 
matter  in  dispute  exceeds  the  sum  or  value  of  where 
five  hundred  dollars,  exclusive  of  costs,  the  sum  da^m  Jand 
or  value  being  made  to  appear  to  the  satisfaction  't^^^.fs 
of  the  court,  either  party,  before  the  trial,  shall  r'nt"8tate!! 
state  to  the  court,   and  make  affidavit,  if  they 
require  it,  that  he  claims  and  shall  rely  upon  a 
right  or  title  to  the  land,  under  a  grant  from  a 
state  other  than  that  in  which  the  suit  is  pending, 
and  produce  the  original  grant,  or  an  exemplifi- 
cation of  it,  except  where  the  loss  of  public  re- 
cords shall  put  it  out  of  his  power,  and  shall  move 
that  the  adverse  party  inform  the  court,  Avhcther 
he  claims  a  right  or  title  to  the  land  under  a 
grant  from  the  state  in  which  the  suit  is  pend- 
ing; the  said  adverse  party  shall  give  such  infor- 


(1)  Where  one  party  claimed  land  under  a  grant  from  a 
slate  before  its  division,  and  the  other  under  a  grant  from  a 
new  state,  subsequently  formed  from  a  portion  of  the  temtory 
of  the  old  state,  such  grants  are  from  different  states.  Town  of 
Pauht  vs.  Clark,  9  Cra.  292  ;  3  Cond.  408. 

And  where  both  parties  obtained  inchoate  titles  from  tlie 
same  state  before  its  separation  into  two  states,  and  afterwards, 
after  such  separation,  received  conflicting  grants  from  the  two 
new  states,  it  was  held,  that  the  grants  were  from  different 
statds.    Cohon  vs.  Lewis,  2  ^Vlica.  377 ;  4  Cond.  16S. 


150 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1769. 

Party  not 
to  give  ill 
evidence 
any  title 
but  that 
pleaded. 


mation,  or  otherwise  not  be  alloAved  to  plead  such 
grant,  or  give  it  in  evidence  upon  the  trial;  and 
if  lie  informs  that  he  does  claim  under  such 
grant,  the  party  claiming  under  the  grant  first 
mentioned,  may  then,  on  motion,  remove  the 
cause  for  trial  to  the  next  circuit  court  to  be 
holden  in  such  district ;  or  if  in  Kentucky  district^ 
to  the  district  court  neat  to  he  holden  therein;  but  if 
he  is  the  defendant,  shall  do  it  under  the  same 
regulations  as  in  the  before  mentioned  case  of 
the  removal  of  a  cause  into  such  court  by  an 
alien;  and  neither  party  removing  the  cause, 
shall  be  allowed  to  plead  or  give  evidence  of  any 
other  title  than  that  by  him  stated  as  aforesaid, 
as  the  ground  of  his  claim.  Act,  1789,  ch.  20, 
§  12. 


ACT,  1789. 


TO    STAY    EXECETION    ON    PETITION    FOR    A    NEW 
TRIAL. 

When,  in  a  circuit  court,  judgment  upon  a 

E.Tecu-       verdict  in  a  civil  action  shall  be  entered,  execu- 
tion may 
be  stayed    ^iou  may,  Oil  motiou  of  cithcr  party,  at  the  discre- 

for  peti- 
tion tor       tion  of  the  court,  and  on  such  conditions  for  the 

a  uevv  1  •      1 

trial.  security  of  the  adverse  party,  as  they  may  judge 
proper,  be  stayed  for  forty-two  days  from  the  time 
of  entering  judgment,  to  give  time  to  file  in  the 
clerk's  office  of  said  court,  a  petition  for  a  new 
trial.  And  if  such  petition  be  there  filed  within 
said  term  of  forty-two  days,  with  a  certificate 
thereon  from  either  of  the  judges  of  such  court. 


CIRCUIT  COURTS.  151 


that  he  allows  the  same  to  be  filed,  which  certi-  '^^"i^'^o 

ficate  he  may  make  or  refuse  at  his  discretion,  >'tw  trial 

•^  granted, 

execution  shall,  of  coarse,  be  further  stayed  to  the  <"""«r 

next  session  of  said  court.     And  if  a  new  trial  be  "••oid 
granted,   the  former  judgment  shall  be  thereby 
rendered  void.     Acl,  1789,  c/i.  20,  §  18. 


TO    FURNISH    STATEMENT    OF    THE    CASE. 

It  shall  be  the  duty  of  circuit   courts,  (1)  in    ^'"'^z!!^- 
causes  in  equity  and  of  admiralty  and  maritime  facts  of 

i-        J  J  case  to 

iurisdiction,  to   cause   the  facts  on  which  they  appear  on 

''  '  •'     the  record; 

found  their  sentence  or  decree,  fully  to  appear  ^,'!,,^^^^. 
upon  the  record,  either  from  the  pleadings  and 
decree  itself,  or  a  state  of  the  case  agreed  by  the 
parties  or  their  coimsel,  or,  if  they  disagree,  by 
a  stating  of  the  case  by  the  court.  Act,  1789, 
cA.  20,  §  19. 


statemeut. 


ALLOWANCE    OF    COSTS. 

Where  in  a  circuit  court,  a  plaintiff  in  an  action    ^^t,  i-sg. 
originally  brought  there,  or  a  petitioner  in  equity,  costs. 

when  re- 
covcry  is 

(1)  This  section  is  altered  and  modified  by  tlic  act  of  1803, 
ch.  40,  which  declares  that,  on  an  appeal,  a  transcript  of  the 
liltel.  Mil,  answer,  depositions,  and  all  other  proceedings,  of 
what  kind  soever  in  the  cause,  shall  be  transmitted  to  the 
supreme  court ;  and  that  no  new  evidence  shall  be  received, 
except  in  admiralty  and  prize  causes. 

The  act  of  1S03  repeals  those  parts  of  the  judiciary  act 
which  authorise  a  writ  of  error,  and  a  statement  of  facts  in 
chancery  cases.    Conn.  vs.  Pain.  5  Wliea.  424  ;   4  Cond.  716. 


152  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTv^Tsg    other  than  the  United  States,  recovers  less  than 
not  equal    fhe   STim  or  valiie  of  five  hundred  dollars,  or  a 

to  $5U0. 

libellant,  upon  his  own  appeal,  less  than  the  sum 
or  value  of  three  hundred  dollars,  he  shall  not  be 
allowed,  but,  at  the  discretion  of  the  court,  may 
be  adjudged  to  pay  costs.     Act,  1789,  ch.  20,  §  20. 


OVER.  ASSIGNED    DEBENTURES. 

ACTj-99.        jj^  cases  of  assigned  debentures,(])  where  pay- 
jurisdic-     ii^ent  shall  be  refused  by  the  collectors  of  the 

tion  over  •' 

assigned     districts  wlicrc  the  said  debentures  were  o^ranted, 

deben-  ^ 

tures.  it  shall  be  lawful  for  the  possessor  or  assignee  of 
the  same  to  institute  and  maintain  a  suit  in  the 
proper  circuit  or  district  court  of  the  United 
States,  a  suit  against  the  person  to  whom  such 
debenture  was  originally  granted,  or  against  any 
endorser  thereof      Act,  1799,  ch.  22,  §  80. 

OVER     SUITS     PENDING     IN      DISTRICT     COURTS,     WHERE 
DISTRICT  JUDGE  IS  UNABLE  TO  PERFORM  HIS  DUTIES. 

ACT,  1809.        In  case  of  the  disability  ( 1 )  of  the  district  judge 
Causes  in    of  either  of  tlic  districts  of  the  United  States,  to 

district 


court 


(1)  These  debentures  are  certificates  issued  by  the  various 
collectors  of  customs,  specifying  the  amounts  due  to  importers 
for  drawback,  in  case  goods  should  be  re-exported. 

(1)  Under  the  act  of  1809,  if  the  disability  of  the  district 
judge  terminates  in  his  death,  the  circuit  court  must  remand 
the  certified  causes  to  the  district  court.  This  is  also  in  accord- 
ance with  the  spirit  of  the  6th  section  of  the  judicial  act  of 
1789,  ch.  20,     Ex  parte,  the  United  States,  1  Gall.  338,  340. 


CIRCUIT  COURTS.  lo.'i 


hold  a  district  court,  and  to  perform  the  duties  of  At-T^'^"-' 
his  office,  and  satisfactory  evidence  thereof  being  J^l;.^''';^^'''; 
shown  to  the  justice  of  the  supreme  court  allotted  isunabi.- 

J  1^  to  periorm 

to  that  circuit,  in  Avhichsuch  district  court  ought  his<iu'i" 

'  _  may  'je 

bv  law  to  be  holden;  and  on  the  application  of  rcuu.vea 

•^  '  _  to  circuit 

the  district  attorney  or  marshal  of  such  district,  court. 
in  writing,  to  the  said  justice  of  the  supreme 
court,  said  justice  of  the  supreme  court  shall  there- 
upon issue  his  order  in  the  nature  of  a  certiorari, 
directed  to  the  clerk  of  such  district  court,  rerjuir- 
ing  him  forthwith  to  certify  into  the  next  circuit 
court  to  be  holden  in  said  district,  all  actions,  suits, 
causes,  pleas  or  processes,  civil  or  criminal,  of  what 
nature  or  kind  soever,  that  may  be  pending  in  said 
district  court  and  undetermined,  with  all  the  pro- 
ceedings thereon,  and  all  files  and  papers  relating  t^",^'','^',,^. 
thereto:  which  said  order  shall  be  immediately  Jerinr.- 

'  ■'     It-rei  ce 

published  in  one  or  more  newspapers  printed  in  thereto. 
said  district,  and  at  least  thirty  days  before  the  ses- 
sion of  such  circuit  court,  and  shall  be  deemed  a 
sufficient  notification  to  all  concerned.     And  the 
said  circuit  court  shall  thereupon  have  the  same  zaucein 

.  .  ,  such  cases 

cognizance  oi  all  such  actions,  suits,  causes,  pleas, 
or  processes,  civil  or  criminal,  of  what  nature  or 
kind  soever,  and  in  the  like  manner  as  the  dis- 
trict court  of  said  district  by  law  might  have,  or 
the  circuit  court,  had  the  same  been  originally 
commenced  therein;  and  shall  proceed  to  hear 
and  determine  the  same  accordingly;  and  the 
said  justice  of  the  supreme  court,  during  the  con- 


154  JURISDICTION  OF  THE  FEDERAL  COURTS, 

ACT^so9.   tinnaiice  of  such  disability,  shall,  moreover,  be 
Limitatinii  investcd  Avitli  and  exercise  all  and  singular,  the 


of 


power. 


&' 


powers  and  authority,  vested  by  law  in  the  judge 
of  the  district  court  in  said  district.  Act,  1809, 
ch.  27,  §  1. 

TO    APPOINT    COMMISSIONERS. 

ACT^8i2.        j^  shall  be  lawful  for  the  circuit  court  of  the 
Appoint-     United  States  to  be  holden  in  any  district,  in 

nient  ot  •' 

conimis-     which  the  present  provision   by  law  for  taking 

siouers  to  x  x  ./  u 

take  iiai],    )3ail  and  affidavits  in  civil  causes,  (in  cases  where 
&c.  ... 

such  affidavits  are  by  law  admissable,)  is  inade- 
quate, or  on  account  of  the  extent  of  such  dis- 
trict, inconvenient,  to  appoint  such  and  so  many 
discreet  persons,  in  different  parts  of  the  district, 
Powers  of-  ^^  such  court  shall  deem  necessary,  to  take  ac- 
knowledgments of  bail   and   affidavits ;    which 
acknowledgments   of   bail   and    affidavits   shall 
have  the  like  force  and  effi?ct  as  if  taken  before 
Perjury      any  judge  of  said  court ;  and  any  person  swear- 
ing falsely  in  and  by  any  such  affidavit,  shall  be 
liable  to  the   same  punishment  as  if  the  same 
affidavit  had  been  made  or  taken  before  a  judge 
of  said  court.     Act,  1812,  ch.  25,  §  1. 
ACT^sir.        {5uch   commissioners  were  afterwards  autho- 
navepow   rised  to  take  bail  and  affidavits  in  civil  causes,  to 

era  ot  a  ' 

judge  in     be  used  in  the  several  district  courts,  and  shall 

certain 

cases.  and  may  exercise  all  the  powers  that  a  justice  or 
judge  of  any  of  the  courts  of  the  United  States 
may  exercise  by  virtue  of  the  30th  section  of 


CIRCUIT  COURTS.  155 


the  judicial  act  of  1789,   chap.  20.     Ac/,   1817,  ^';|j_'''^- 
ck  30. 

By  a  still  later  act  they  were  authorized  to  ex-  act^w.'. 

ercise  all  the  powers  that  any  instice  of  the  peace,  navepow- 

or  Other  magistrate,  of  any  of  the  United  States,  .j"sticeiu 

.  .  ,  certain 

could,  exercise  in  respect  to  offenders,  for  any  cases. 
crime  or  oflence  against  the  United  States,  under 
the  act  of  1789,  ch.  20,  §  33,  and  all  the  powers 
that  any  judge  or  justice  of  the  peace  could  exer- 
cise under  the  act  of  1790,  ch.  29,  §  G,  in  relation 
to  seamen.     Act,  1842,  ch.  188,  §  1. 

The   highest  courts  of  the  various  territories    act,  i^ 
have  also  the  power  to  appoint  such  commission- 
ers.    Act,  1850,  ch.  60,  §  2. 

OVER    SUITS    WHERE    THE    UNITED    STATES    OR    ITS 
OFFICERS    SUE. 

Concurrent  with  the  district  courts,  (1)    and    a^^'-'- 
with  the  courts  and  mao^istrates  of  the  several  Jns"itsbv 

3  U.  S.  orbv 

states,  tlie  circuit  courts  shall  have  cognizance  itsofliccr.s. 
of  all  suits  at  common  law,  where  the  United 
States,  or  any  officer  thereof,  under  the  authority 
of  any  act  of  Congress,  shall  sue,  although  the 

(1)  This  act  expressly  vests  jurisdiction  in  the  circuit  and 
district  courts,  in  all  suits  at  common  law,  where  any  officer  of 
the  United  States  sues  under  the  authority  of  any  act  of  Con- 
gress. And  the  words  at  the  end  of  the  section,  do  n(jt  confine 
jurisdiction,  previously  given,  to  one  hundred  dollars,  but  pre- 
vent it  from  stopping  at  that  sum.  P.  M.  General  vs.  Early, 
T2  Vr\\cn.  136;  G  Cond.  4S0,  483,  484. 


156  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTasi.5.  debt,  claim,  or  other  matter  in  dispute,  shall  not 
amount  to  one  hundred  dollars.  Act,  1815,  ch. 
101,  §4. 

OVER    CAUSES    RESPECTING    PATENTS    AND 
COPYRIGHTS. 


ACT^^is.        rpj^g  circuit  courts  (1)  of  the  United  States  shall 
In  cases  of  havc  Original  co^^nizance,  as  well  in  equity  as  at 

patents  °  '^  . 

and  copy-    Jaw,  of  all  actions,  suits,  controversies  and  cases, 

nghis. 

arising  under  any  law  of  the  United  States,  grant- 

(1)  The  constitutionality  of  the  act  authorizing  suits  in  the 
circuit  courts,  in  patent  cases,  is  based  on  that  construction  of 
the  constitution,  which  asserts  the  right  of  the  legislature  to 
oive  orio^inal  iurisdiction  to  the  circuit  courts  in  cases  arising 
under  a  law  of  the  United  States.  The  defendant  may  not  at 
the  trial,  question  the  validity  of  the  patent,  (because  of  the 
unconstitutionality  of  the  act  giving  jurisdiction  ?)  or  make 
any  point  which  requires  the  construction  of  an  act  of  congress. 
The  jurisdiction  of  the  court  can  not  be  ousted,  nor  the  posi- 
tion established,  that  it  is  not  a  case  under  a  law  of  the  United 
States.  Osborn  vs.  Bank  United  States.  Marshall's  opinion. 
9  Whea.  738 ;  5  Cond.  741,  751. 

The  jurisdiction  conferred  by  the  acts  respecting  inventions, 
copyrights,  &c.,  embraces  all  cases,  without  regard  to  the  c7ia- 
racter  of  the  parties,  or  to  the  amount  in  controversy ;  it  extends 
to  all  such  cases,  notwithstanding  the  amount  claimed  may  not 
exceed  five  hundred  dollars,  and  the  adverse  parties  be  citizens 
of  the  same  state.     Conk.  Trea.  ed.  1842,  G5. 

It  extends  to  all  cases,  both  at  law  and  in  equity;  and  it 
seems  to  be  the  better  opinion  that  the  jurisdiction  is  exclu- 
sive, and  that  the  state  courts  can  not  entertain  a  suit  for  the 
infringement  of  a  patent,  or  to  declare  a  patent  void.  3  Kent's 
Com.  368  ;   Story^s  Com.  ;    Curtis  on  Fatcnts,  452. 


CIRCUIT  COURTS.  157 


ing  or  confirming  to  autliors  or  inventors  the  ex-  Acivisia 
elusive  right  to  their  respective  writings,  inven- 
tions and  discoveries  ;  and  upon  any  bill  in  equity, 
filed  by  any  party  aggrieved  in  any  such  cases, 
shall  have  authority  to  grant  injunctions,  accord- 
ing to  the  course  and  principles  of  courts  of  equity, 
to  prevent  the  violation  of  the  rights  of  any 
authors  or  inventors,  secured  to  them  by  any 
laws  of  the  United  States,  on  such  terms  and 
conditions  as  the  said  courts  may  deem  fit  and 
reasonable.     Act,   1819,  ch,  19. 

Under  the  general  patent  law  of  1836,  the  same    actvisso. 
section  is  enacted,  being  limited,  however,  in  that 
act  of  course,  to  inventors.     Act,  1836,  ch.  357,  §  1 7. 

By  the  act  of  1842,  supplementary  to  the  act  actj&i2. 
of  1836,  penalties  arc  imposed  for  marking  un- 
patented articles  with  the  name,  or  any  imitation 
of  the  name,  of  any  patentee  of  a  patented  arti- 
cle, for  the  purpose  of  deceiving  the  public ;  and 
"  the  party  so  offending  shall  be  liable  for  such 
offence,  to  a  penalty  of  not  less  than  one  hundred 
dollars,  with  costs,  to  be  recovered  by  action  in 
any  of  the  circuit  courts  of  the  United  States,  or 
in  any  of  the  district  courts  of  the  United  States, 
having  the  powers  and  jurisdiction  of  a  circuit 
court."     Act,  1842,  rA.  263,  §  5. 

For  law  respecting  appeals  in  such  cases,  see 
"Supreme  Court,"  fuitc,  page  117. 


158  JURISDICTION  OF  THE  FEDERAL  COURTS. 


IN    CASES    OF    PIRACY. 


ACT   1S19. 


If  any  person  or  persons  whatever,  (1)  shall, 
Piracy,       on  the  high  seas,  commit  the  crime  of  piracy,  as 

lueut  of.        

(1)  The  act  of  1819,  ch.  77,  referring  to  the  law  of  nations 
for  a  definition  of  the  crime  of  piracy,  is  a  constitutional  exer- 
cise of  the  power  of  congress  to  define  and  punish  that  crime. 
Congress  may  as  well  define  by  using  a  term  of  a  known  and 
determinate  meaning,  as  by  an  express  enumeration  of  all  the 
particulai's  included  in  that  term.  That  is  certain,  which  is  by 
necessary  reference  made  certain.  To  define  piracies,  in  the 
sense  of  the  constitution,  is  merely  to  enumerate  the  crimes 
which  shall  constitute  piracy.  United  States  vs.  Smith,  5  Whea. 
153;   4  Cond.  619,  621. 

A  robbery  committed  on  the  high  seas  is  piracy,  under  the 
act  of  1790,  ch.  9,  though  such  robbery,  if  committed  on  land, 
would  not  be  punishable  with  death.    United  States  vs.  Palmer, 

3  Whea.  610  ;  4  Cond.  352. 

A  robbery  committed  by  a  foreigner,  on  the  high  seas,  on 
board  of  a  foreign  ship,  is  not  piracy  under  the  act,  and  is  not 
punishable  in  the  courts  of  the  United  States.  Ihid.  But  see 
United  States  vs.  Holmes,  5  Wliea.  412  ;   4  Cond.  708. 

To  define  the  meaning  of  the  term  "robbery,"  the  common 
law  must  be  referred  to.  AVhenever  a  statute  of  the  United 
States  uses  a  technical  term,  which  is  known,  and  its  meaning 
clearly  ascertained  by  the  common  or  civil  law,  from  one  or 
other  of  which  it  is  obviously  borrowed,  it  is  proper  to  refer 
for  its  meaning  to  the  source  from  which  it  is  taken.  United 
States  vs.  Jones,  3  Wash.  209. 

There  is  a  distinction  between  the  crimes  of  murder  and 
piracy.  The  latter  is  an  offence  within  the  criminal  jurisdiction 
of  all  nations  ;  not  so  with  murder  ;  it  is  punishable  under  the 
lav/s  of  each  state.      United  States  vs.  Furlong,  5  Whea.  185; 

4  Cond.  623,  630,  631. 

See  also,  cases  cited  at  4  Cond.  367,  8,  9.  1  Stat,  at  Large, 
114.     3  Stat,  at  Large,  510. 


CIRCUIT  COURTS.  159 


defined  by  the  law  of  nations,  and  such  offender  act^siq. 
or  offenders  shall,  afterwards  be  brought  into,  or 
found  in  the  United  States,  every  such  oifender 
or  offenders  shall,  upon  conviction  thereof,  before 
the  circuit  court  of  the  United  States  for  the  dis- 
trict into  which  he  or  they  may  be  brought,  or  in 
which  he  or  they  shall  be  found,  be  punished  by 
death.  Act,  1819,  ch.  77,  §  5,  made  perpetual  by 
Act,  1820,  ch.  113,  §  2. 

The  act  of    1820    also  declares  pirates  those    actv!©-^. 
committing  robbery  on  shipboard,  on  the  high  riracy, 

•111        definition 

seas,  or  in  any  roadstead  where  the  tide  ebbs  of. 
and  flows,  and  also  those  landing  on  any  foreign 
shore,  and  seizing  negroes  or  mulattoes,  with  in- 
tent to  make  them  slaves,  and  also  those  confin- 
ing or  detaining  negroes  or  mulattoes  on  ship- 
board, with  intent  to  make  them  slaves,  and  con- 
fers upon  circuit  courts  the  power  and  jurisdic- 
tion to  try  such  offences.  Act,  1820,  ch.  1 13,  §§  3, 
1,  5. 
To  the  section  (^  3)  declarino:  robbery  to  be  pira-  Jurisdic- 

^^      ^  °  -^  .  ^  tioH  when 

cy,  there  is  attached  the  following  proviso:  "that  coucun'ut 

.  .  .  with  state 

nothing  111  this  section  contained  shall  be  con-  courts. 
strued  to  deprive  any  particular  state  of  its  jurisdic- 
tion over  such  offences,  Avhen  committed  within 
the  body  of  a  county,  or  authorize  the  courts  of 
the  United  States  to  try  any  such  offenders,  after 
conviction  or  ac([uittance,  for  the  same  ollence, 
in  a  state  court." 

The  district  courts  may  also  take  cognizance   act.  iks 
of  all  acts  of  piracy.     Act,  1823,  ch.  72.  ~~ 


160  JURISDICTION  OF  THE  FEDERAL  COURTS. 


IN  CASES  UNDER  SLAVE  TRADE  ACTS. 
ACT.  1791. 

—  "  If  any  ship  or  vessel  shall  be  fitted  out  (1)  to 

trade,  for-    ^all  fi'om  the  United  States,  for  the  piu'pose  of 

feitures 

(1)  Under  the  act  of  1794,  it  is  not  necessary,  in  order  to 
incur  the  forfeiture,  that  the  vessel  should  be  completely  fitted 
and  ready  for  sea.  As  soon  as  the  preparations  have  proceeded 
so  far,  as  clearly  to  manifest  the  intention,  the  right  of  seizure 
attaches.  The  Emily  and  Caroline,  9  Whea.  381  ;  5  Cond. 
623. 

The  act  of  1794  was  intended  to  prohibit  any  citizen  or 
resident  of  the  United  States  from  equij^ping  vessels  within 
the  United  States,  carrying  on  trade  or  trafiic  in  slaves  to  any 
foreign  country.     The  Tryphenia,  1  Wash.  522. 

Under  the  act  of  1794,  if  the  original  object  and  equipment 
of  the  voyage  was  to  carry  on  the  African  slave  trade,  the  for- 
feiture attaches,  whether  the  vessel  was  owned  by  foreigners 
or  Americans.  Even  if  the  equipments  are  innocent,  and  shall 
not  have  been  completed,  if  there  is  proof  of  the  guilty  inten- 
tion the  forfeiture  attaches.  The  Margaret,  9  Whea.  421 ;  5 
Cond.  638. 

Under  the  act  of  1794,  forfeiture  is  not  incuiTod  by  the 
building  of  a  vessel  for  the  illegal  purpose,  but  only  for  the 
fitting  out,  and  causing  her  to  sail.  The  Brig  Caroline,  1  Mar. 
Dec.  384. 

The  prohibitions  in  the  slave  trade  acts  of  1800,  ch.  51,  and 
of  1818,  ch.  91,  extend  to  the  carrying  slaves  as  freight,  as 
well  as  where  they  are  the  property  of  citizens  of  the  United 
States ;  and  to  carrying  them  from  one  port  to  another  of  the 
same  foreign  country,  as  well  as  from  one  foreign  country  to 
another.     The  Merino,  9  Whea.  391 ;  5  Cond.  623. 

The  act  of  1800,  prohibits  not  only  the  transportation  of 
slaves,  but  the  being  employed  in  the  slave  trade ;  and  there- 
fore a  vessel  caught  in  such  trade,  though  before  she  has  taken 


CIRCUIT  COURTS.  161 


trade  or  traffic  in  slaves,  or  shall  be  caused  to  a^'^J'^' 

sail  so  as  aforesaid,  eveiy  such  ship  or  vessel,  ^^hero 

''  *  proseciit- 

her  tackle,  apparel,  furniture  and  other  appurte-  ed.  an.i 

nances,  shall  be  forfeited  to  the  United  States;  sued  for. 
and  shall  be  liable  to  be  seized,  prosecuted  and 


on  board  any  slaves,  is  liable  to  forfeiture.     The  Alexander,  3 
Mason,  175. 

The  act  of  1800  extends  the  prohibitions  of  the  act  of  1794 
to  citizens  of  the  United  States,  in  any  manner  concerned  in 
the  slave  traffic.     The  Tnjphenia,  1  Wash.  522. 

The  act  of  1803,  forbidding  any  master  or  captain  of  a  ship 
or  vessel,  to  import  or  bring  into  any  port  of  the  United  States, 
any  negro,  mulatto  or  person  of  color,  under  certain  penalties, 
where  the  admission  of  such  persons  is  prohibited  by  the  laws 
of  such  state,  does  not  apply  to  colored  seamen  employed  in 
navigating  such  ship  or  vessel.  The  Brig  Wilson,  1  ^lar. 
Dec.  423. 

Under  the  act  of  1818,  the  offence  of  sailing  from  a  port  to 
ongage  in  the  slave  trade,  is  not  committed,  unless  the  vessel 
sails  out  of  tlio  port.     United  States  vs.  La  Costc,  2  Mason,  129. 

It  is  not  necessary  in  an  indictment,  under  the  act  of  1818, 
to  aver  the  defendant  knowingly  committed  the  oifence.  United 
States  vs.  S/nith,  2  Mason,  143. 

The  African  slave  trade  has  been  authorized  and  protected 
by  the  laws  of  all  commercial  nations.  It,  therefore,  can  not 
be  considered  as  contrary  to  the  laws  of  nations,  and  remains 
lawful  to  those  nations  which  have  not  forbidden  it.  It  is  not 
piracy,  unless  so  declai-ed  by  the  statute,  or  treaties  of  the 
nation  to  whom  the  party  belongs.  The  Antclojw,  10  AMiea. 
t)6  ;  6  Cond.  30. 

See  also,  The  Miry  Ann,  8  Wliea.  380  ;  5  Cond.  471.     The 
Jose/a   SegvMdii,  10  Whea.  312;  6  Cond.  111.      United  States 
vs.  Gooding,  12  \Vhea.  460;  6  Cond.  572.      United  States  vs. 
Preston,  3  Pet.  57.     United  States  vs.  Garonne,  11  Pet.  73. 
11 


162  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTvvru.  condemned,  in  any  of  the  circuit  courts,  or  dis- 
trict court  for  the  district  where  the  ship  or  vessel 
may  be  seized.     Act,  1794,  ch.  11,  §  1. 

Persons  aiding  or  abetting,  contrary  to  that  act, 
are  to  forfeit  each  the  sum  of  two  thousand  dol- 
lars.    Ibid.  §  2. 

ACTJ1800.        rpi^g  ^^^  ^^  j  j^qq  imposcs  pcualtics  upon  citizens 

of  the  United  States,  having  an  interest  in,  or 
serving  on  board  of  vessels  engaged  in  the  slave 
trade,  and  gives  to  the  district  and  circuit  courts 
of  the  United  States,  cognizance  of  the  acts  and 
offences  prohibited  therein.  Act  1800,  ch.  51, 
§§  1,  5. 
AC r.  1803.  The  act  of  1803,  provides  that  the  penalties 
and  forfeitures  therein  declared,  "may  be  sued 
for  and  recovered  in  any  court  of  the  United 
States."     Act,  1803,  ch.  10,  §  1. 

The  act  of  1807,  declares  that  the  forfeitures 
incurred  under  its  provisions,  may  be  "prosecuted 
and  condemned  in  any  court  of  the  United  States, 
having  jurisdiction  thereof "  Act,  1807,  ch.22,  §9. 

The  act  of  1818  has  also  similar  provisions. 
Act,  1818,  ch.  91,  §§2  and  4. 

Slave  trade  acts.  Acts,  1 794,  ch.  1 1 ;  1800,  ch.  5 1 ; 
1803,  ch.  10;  1807,  ch.  22;  1818,  ch.  91;  1820, 
ch.  113. 


ACr,  1807. 


CIRCUIT  COURTS.  163 


OVER    CAUSES    PENDING    IN    A    DISTRICT    COURT,    IN 

WHICH    DISTRICT    JUDGE    IS    INTERESTED. 

ACT,  IKl. 

In  all  suits  and  actions  in  any  district  court  of  ^  .— 

Suits  i>tu- 

the  United  States,  in  which  it  shall  appear  that  fi'nt'>" 

•^  district 

the  iud"re  of  such  court  is  any  ways  concerned  court.x. 

-*        '^  '  ,  where 

in   interest,   or   has  been  of  counsel  for   either  judg'^-is 

,  iiitLi'aieil, 

party,  or  is   so   related  to,  or  connected  with,  n.-ybere- 

.         luoved  to 

either  party,  as  to  render  it  improper  for  him,  in  circuit 

„  ,  .  courts. 

his  opinion,  to  sit  on  the  trial  of  such  suit  or  ac- 
tion, it  shall  be  the  duty  of  such  judge,  on  appli- 
cation of  either  party,  to  cause  the  fact  to  be 
entered  on  the  records  of  the  court;  and  also,  an 
order  that  an  authenticated  copy  thereof,  with  all 
the  proceedings  in  such  suit  or  action,  shall  be 
forthwith  certified  to  the  next  circuit  court  of  the 
district;  and  if  there  be  no  circuit  court  in  such 
district,  to  the  next  circuit  court  in  the  state; 
and  if  there  be  no  circuit  court  in  such  state,  to 
the  most  convenient  circuit  court  in  an  adjoining 
state  ;  which  circuit  court  shall,  upon  such  record  Cogni- 
bein^i;  filed  with  the  clerk  thereof,  take  cognizance  ^udu 
thereof,  in  like  manner  as  if  such  suit  or  action 
had  been  originally  commenced  in  that  court, 
and  shall  proceed  to  hear  and  determine  the  same 
accordingly  ;  and  the  jurisdiction  of  such  circuit 
court  shall  extend  to  all  such  cases  so  removed, 
as  were  cognizable  in  the  district  court  from 
which  the  same  was  removed.     Act,  182 1 ,  ch.  5 1 . 


zauce  in 
ases. 


164 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


This  act  embraces  the  whole  of  the  11th  sec- 
tion of  the  act  of  1792,  ch.  S6,  and  some  further 
provisions. 

OBSTRUCTION    OF    GOVERNMENT    SURVEYORS. 

ACT,  1S30.        j\^ny  person  interrupting,  hindering  or  prevent- 
lu  cases  of  ing  thc  siirvcy  of  the  public  lands  of  the  United 

obstruct-  ,  111-  I'll 

ing  gov-  States,  or  of  any  private  land  claim,  which  has 
surveyors,  or  may  bc  confirmed  by  the  United  States,  shall 
be  considered  and  adjudged  to  be  guilty  of  a 
misdemeanor,  and  upon  conviction  in  any  district 
or  circuit  court  of  the  United  States,  in  any  state 
or  territory  having  jurisdiction  of  the  same,  shall 
be  fined  and  imprisoned.     Act,  1830,  ch.  163  §  1. 


IN    CASES    UNDER    THE    REVENUE    LAWS. 


ACT,  1833. 


The  jurisdiction  of  the  circuit  courts  of  the 
United  States  shall  extend  to  all  cases,  in  law  or 
u.u]er°he  cqulty,  arising  under  the  revenue  laws  of  the 
United  States,  for  which  other  provisions  are  not 
already  made  by  law;  and  if  any  person  shall 
receive  any  injury  to  his  person  or  property  for 
or  on  account  of  any  act  by  him  done,  under  any 
law  of  the  United  States,  for  the  protection  of  the 
revenue,  or  the  collection  of  duties  on  imports, 
he  shall  be  entitled  to  maintain  suit  for  damage 
therefor  in  the  circuit  court  of  the  United  States, 
in  the  district  wherein  the  i^arty  doing  the  injury 
may  reside,  or  be  found.     Acty  1833,  ch.  57,  §  2. 


In  cases 
arisiii 


revenue 
laws 


Damages 
for  inju- 
ries about 
such  lav/s 
how  reco- 
vered. 


CIRCUIT  COURTS.  165 


OVER  CAUSES  REMOVED  FROM  STATE  COURTS,  AVIIERE 
SUIT  CONCERNS  ANY  ACT  DONE  UNDER  THE  REVENUE 
LAW. 

In  any  case  where  suit  or  proceeding  shall  he    actvi833. 
commenced  in  a  court  of  any  state,  aj?ainst  any  Causes 
officer  of  the  United  States,  or  other  person,  for  a  state 

court  for 

or  on  account  of  any  act  done  under  the  revenue  acts  done 
laws  of  the  United  States,  or  under  color  thereof,  venue 
or  for  or  on  account  of  any  right,  authority  or  title,  be  remoV 
set  up  or  claimed  by  such  officer,  or  other  person  cuitco'its. 
under  any  such  law  of  the  United  States,  it  shall 
be  lawful  for  the  defendant  in  such  suit  or  prose- 
cution, at  any  time  before  trial,  upon  a  petition 
to  the  circuit  court  of  the  United  States,  in  and 
for  the  district  in  which  the  defendant  shall  have 
been  served  with  process,  setting  forth  the  nature 
of  said  suit  or  prosecution,  and  verifying  the  said 
petition  by  athdavit,  together  with  a  certificate, 
signed  by  an  attorney  or  counsellor  at  law  of 
some  court  of  record  of  the  state  in  which  such 
suit  shall  have  been  commenced,  or  of  the  United 
States,  setting  forth,  that  as  counsel  for  the  peti- 
tioner, he  has  examined  the  proceedings  against 
him,  and  has  carefully  enquired  into  all  tlie  mat- 
ters set  lorth  in  the  petition,  and  that  he  believes 
the  same  to  be  true ;  which  petition,  affidavit  and 
certificate  shall  be  presented  to  the  said  circuit 
court,  if  in  session,  and  if  not,  to  the  clerk  thereof, 
at  his  office,  and  shall  be  filed  in  said  office,  and 
the   cause   shall   thereupon  be   entered  on  the 


Petition 
auil  certi- 
ficate, aud 
where 
liled. 


166  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTu^.    docket  of  said  court,  and  shall  be  thereafter  pro- 
Certiorari   ccedcd  111  as  a  causc  orijrinally  commenced  in 

when  pro-  "  •' 

per-  that  court;  and  it  shall  be  the  duty  of  the  clerk 

of  said  court,  if  the  suit  was  commenced  in  the 
court  below  by  summons,  to  issue  a  writ  of  certio- 
rari to  the  state  court,  requiring  the  said  court  to 
send  to  the  said  circuit  court  the  record  and  pro- 
ceedings in  said  cause ;  or  if  it  was  commenced 

Habeas       |)y  capitts,  lic  shall  issuc  3.  Writ  of  habeas  corpus 

corpus  cum        J         J- 

causa,        cam  cttusa — a  duplicate  of  which  said  writ  shall 

wlieu  pro- 
per, be  delivered  to  the  clerk  of  the  state  court,  or  left 

at  his  office  by  the  marshal  of  the  district,  or  his 

deputy,  or  some  person  duly  authorized  thereto. 

Stay  of       p^T^^  thereupon,  it  shall  be  the  duty  of  the  said 

proceed-  ■*•  •' 

ings below  gtatc  court  to  stay  all  further  proceedings  in  such 
cause;  and  the  said  suit  or  prosecution,  upon 
delivery  of  such  process,  or  leaving  the  same  as 
aforesaid,  shall  be  deemed  and  taken  to  be  moved 
to  the  said  circuit  court;  and  any  further  proceed- 
ings, trial  or  judgment  therein  in  the  state  court, 
shall  be  wholly  null  and  void.  And  if  the  de- 
fendant in  any  such  suit  be  in  actual  custody  on 
mesne  process  therein,  it  shall  be  the  duty  of  the 

Marshal  to  marslial,  by  virtue  of  the  writ  of  habeas  corpus 

feiidaut.  cum  causa,  to  take  the  body  of  the  defendant  into 
his  custody,  to  be  dealt  with  in  the  said  cause, 
according  to  the  rules  of  law  and  the  order  of  the 
circuit  court,  or  any  judge  thereof,  in  vacation. 

meS  &c.  And  all  attachments  made,  and  all  bail  and  other 
security  given,  upon  such  suit  or  prosecution, 


to  conti- 
uuuo. 


CIRCUIT  COURTS.  167 


shall  be  and  continue  in  like  Ibrce  and  effect,  a.s    ^civitifl 
if  the  same  suit  or  prosecution  had  proceeded  to 
final  judgment  and  execution  in  the  state  court. 
And  if,  upon  the  removal  of  any  such  suit  or  pro-  ings'^w'hea 
secution,  it  shall  be  made  to  appear  to  the  said  c'ord'be-'" 
circuit  court  that   no  copy  of  the   record   and  iloYuehad 
proceedings  therein,  in  the  state  court,  can  be 
obtained,  it  shall  be  lawful  for  the  circuit  court 
to  allow  and  require  the  plaintiff  to  proceed  de 
novo,  and  to  file  a  declaration  of  his  cause  of 
action ;  and  the  parties  may  thereupon  proceed 
as  in  actions  originally  brought  in  said  circuit 
court :  and  on  failure  of  so  proceeding,  judgment 
oi nonpros,  maybe  rendered  against  the  plaintiff, 
with  costs  for  the  defendant.  Act,  1833,  ch.  57,  §3. 

OVER    CAUSKS    ARISING    UNDER    THE    INDIAN    ACTS. 

So  much  of  the  laws  of  the  United  States  as    actvi834 
provides  for  the  ininishment  of  crimes  committed  incauBes 
in  anv  l>lace  within  the  sole  and  exclusive  juris-  ^er  the 
diction  of  the  United  States,  shall  be  in  force  in  acts. 
the  Indian  country:  Prmnded,  that  the  same  shall 
not  extend  to  crimes  committed  by  one  Indian 
against  the  property  or  person  of  another  Indian. 
Act,  1834,  ch.  161,  §25.(1) 


(1)  The  exception  or  proviso  in  the  25th  section  of  the  act 
of  1834,  does  not  embrace  the  case  of  a  white  man,  who,  at 
mature  age,  is  adopted  in  an  Indian  tribe.  He  may,  by  such 
adoption,  become  entitled  to  certain  privileges  in  the  tribe, 
but  he  does  not  thereby  become  an  Indian.     The  exception  is 


168  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTM834.  j^iY  penalties  which  shall  accrue  under,  this  act, 
shall  be  sued  for  and  recovered  in  an  action  of 
debt,  in  the  name  of  the  United  States,  before 
any  court  having  jurisdiction  of  the  same,  in  any 
state  or  territory  in  which  the  defendant  shall  be 
arrested  or  found.     Ibid.  §  27. 

OVER    CAUSES    ARISING    UNDER    ACTS    RELATING    TO 
STEAMBOATS. 

ACTV1838.        rpj^g  penalties  imposed  by  this  act  (for  carry- 
lu  causes    i^or  aQods  and  passeng-ers  without  a  license  —  for 

arising  un-  o   o  j  o 

tier  acts     not  haviuo^   an  inspector's   certificate  —  for  not 

relating  to  o  i 

steam-  havjng  experienced  and  skillful  engineers — for 
not  opening  the  safety  valve  when  the  vessel 
stops  —  for  not  having  long  boats  and  yawls  — 
for  not  having  fire  engine  and  hose,  and   iron 


confined  to  those  who,  by  the  usages  and  customs  of  Indians, 
belong  to  their  race.  It  can  hardly  be  supposed  that  congress 
intended  to  grant  exemption  to  that  class  of  men  who  are  most 
likely  to  become  Indians  by  adoption,  and  who  generally  prove 
to  be  the  most  mischievous  and  dangerous  inhabitants  of  their 
country.     United  States  vs.  Rogers,  5  How.  567. 

The  act  of  30th  March,  1802,  having  described  what  should 
be  considered  the  Indian  country  at  that  time,  as  well  as  at  any 
future  time  when  purchases  of  territory  should  be  made  of  the 
Indians ;  the  carrying  of  spiritous  liquors  into  a  territory  so 
purchased  after  March,  1802,  although  the  same  should  be  at 
the  time  frequented  and  inhabited  exclusively  by  Indians, 
would  not  be  an  offence  within  the  meaning  of  the  before  men- 
tioned act  of  congress,  so  as  to  subject  the  goods  of  the  trader, 
found  in  company  with  those  liquors,  to  seizure  and  forfeiture. 
American  Fur  Company  vs.  United  States,  2  Peters,  358,  368. 


CIRCUIT  COURTS.  169 


tiller  chains  or  additional  steering  apparatus—   act^sjs. 

and  for  not  having  signal  lights  at  night),  may 

be  sued  for  and  recovered  in  the  name  of  the 

United  States,  in  the  district  or  circuit  court  of  such 

district  or  circuit  where  the  offence  shall  have 

been   committed,   or  forfeiture   incurred,    or   in 

which  the  owner  or  master  of  said  vessel  may 

reside ;  or  the  said  penalty  may  be  prosecuted  for 

by  indictment  in  either  of  the  said  courts.     Act, 

1838,  cJi.  191,  §  11. 

Every  captain,  enofineer,  pilot  or  other  person   Peuaities 
J      i-        '      ^  *  for  iiiaii  en- 

employed  on  board  of  any  steamboat  or  vessel,   tion  and 

propelled  in  whole  or  in  part  by  steam,  by  whose  persons 
misconduct,  negligence  or  mattcntion  to  nis  or  boats 
their  respective  duties,  the  life  or  lives  of  any 
person  or  persons  on  board  said  vessel  may  be 
destroyed,  shall  be  deemed  guilty  of  manslaugh- 
ter, and  upon  conviction  thereof  before  ^ny  circuit 
court  in  the  United  States,  shall  be  sentenced  to 
confinement  at  hard  labor  for  a  period  not  more 
than  ten  years.     Ihid.  §  12. 


OVER  SUITS    AND    ACTIONS    WHERE    CIRCUIT   JUDGES    ARE 
INTERESTED. 

In  all  suits  and  actions  in  any  circuit  court  of  act,  isso. 
the  United  States,  in  which  it  shall  appear  that  overcau- 

n  1        •      1  1  r        ^         ^^^  where 

both  the  judges  thereof  or  the  judge  thereoi,  who  circuit 
IS  solely  competent  by  law  to  tr}^  the  same,  shall  mieresi'd. 
be  any  ways  concerned  in   interest  therein,  or 
shall  have  been  of  counsel  for  either  party,  or  is, 


« 


170  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTV1830,  Qj.  ^j.g  gQ  related  to  or  connected  with  either  party 
as  to  render  it  improper  for  him  or  them,  in  his 
or  their  opinion,  to  sit  in  the  trial  of  such  suit  or 
action,  it  shall  be  the  duty  of  such  judge  or 
judges,  on  application  of  either  party,  to  cause 
the  facts  to  be  entered  on  the  records  of  the  court ; 
and  also  to  make  an  order  that  an  authenticated 
copy  thereof,  with  all  the  proceedings  in  such 
suit  or  action,  shall  be  forthwith  certified  to  the 
most  convenient  circuit  court  in  the  next  adja- 
cent state,  or  in  the  next  adjacent  circuit;  which 
Oogni-  circuit  court  shall,  upon  such  record  and  order 
removal,  bciug  filed  with  tlic  clcrk  thereof,  take  cognizance 
thereof  in  the  same  manner  as  if  such  suit  5r 
action  had  been  rightfully  and  originally  com- 
menced therein,  and  shall  proceed  to  hear  and 
determine  the  same  accordingly,  and  the  proper 
process  for  the  due  execution  of  the  judgment  or 
decree  rendered  therein,  shall  run  into  and  may 
be  executed  in  the  district  where  such  judgment 
or  decree  was  rendered,  and  also  into  the  district 
from  which  such  suit  or  action  was  removed. 
Act,  1839,  ch.  36,  §  8. 

UNDER    POST    OFFICE    ACTS. 

ACT,iw>        All  causes  (I)  of  action  arising  under  this  act 
In  causes    may  bc  sued,  and  all  ofiendcrs  against  this  act 

arising  un- 

(1)  The  postmaster-general  can  not  sue  in  the  federal  courts, 
under  that  part  of  the  constitution  which  gives  jurisdiction  in 


CIRCUIT  COURTS.  171 


may  be  prosecuted,  before  any  circuit  or  district    •'^^"^■^'*- 
court  of  the  United  States,  or  tlie  district  of  Co-  '-'^JV""''. 

consequence  of  the  character  of  the  party ;  nor  is  he  authorized 
to  sue  by  the  judiciary  act.  He  comes  into  the  federal  courts 
under  the  authority  of  an  act  of  congress,  the  constitutionality 
of  which  rests  ujion  the  admission  that  his  suit  is  a  case  arising 
under  a  law  of  the  United  States.  Oshorn  vs.  Bank  of  United 
States,  9  Whea.  738  ;  5  Cond.  741,  750.  P.  M.  General  vs. 
Early,  12  Whea.  136  ;  6  Cond.  4S0. 

Wliere  an  issue  of  fact  is  taken  upon  the  negligence  of  the 
postmaster  himself,  it  is  not  competent  to  give  in  evidence  the 
neglect  of  his  assistant.  Dunlop  vs.  Munroe,  7  Cra.  242 ;  2 
Cond.  484. 

In  order  to  make  a  postmaster  liable  for  negligence,  it  must 
appear  that  the  Iops  or  injury  sustained  by  the  plaintiff',  was  the 
consequence  of  the  negligence.     Ibid. 

The  neglect  of  the  postmaster-general  to  sue  for  balances 
due  by  postmasters,  within  the  time  prescribed  by  law,  although 
he  is  thereby  rendered  personally  liable,  is  not  a  discharge  of 
such  postmasters  or  their  sureties,  from  liability  on  their  bonds. 
Locke  vs.  P.  M.  General,  3  Mason,  446. 

Nor  does  an  order  from  the  post-office  department,  directing 
a  postmaster  to  retain  the  balances  due,  until  drawn  for  by  the 
general  post-office.    Ibid. 

Notwithstanding  the  neglect  of  the  postmaster-general  to 
commence  suit,  the  postmaster  and  his  sureties  remain  debtors 
to  the  government.  The  responsibility  of  the  postmaster- 
general  is  superadded  to,  not  substituted  for,  that  of  the  obli- 
gors.    Box  vs.  P.  M.  Ge?iei-al,  1  Pet.  317,  323. 

The  claim  of  the  United  States  is  not  released  by  the  laches 
of  the  offi<?er,  to  whom  the  assertion  of  the  claim  is  entrusted 
by  law.     ////(/. 

But  see  act  of  1825,  ch.  64,  §  3,  exonerating  sureties  if  prin- 
cipal is  not  sued  in  two  years,  and  Jafws  vs.  U.  S.,  7  Howard. 
681.     P.  M.  General  vs.  FcnneU,  1  McLean,  217. 


172 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV1S45    iun^i)ia,  or  of  the  territories  of  the  United  States. 
Act,  1845,  ch,  43,  §  20. 


ACT,  1846. 

On  appli- 
cavion  of" 
foreign 
consuls  to 
carry  out 
treaty  sli- 
pulatiou. 


ON    APPLICATION    OF    FOREIGN    CONSULS    TO    CARRY 
OUT    TREATY    STIPULATIONS. 

The  district  and  circuit  courts  of  the  United 
States,  and  commissioners,  shall  have  full  power, 
authority  and  jurisdiction,  upon  the  application 
or  petition  of  the  said  (?.  e.  foreign)  consuls,  vice- 
consuls  or  commercial  agents,  requiring  their  as- 
sistance to  carry  into  effect  the  award,  or  arhi- 
tration,  or  decree,  of  any  such  consuls,  vice-con- 
suls or  commercial  agents,  in  the  premises  {i.  e. 
in  the  enforcennent  of  provisions  in  the  various 
treaties  of  the  United  States  with  foreign  powers,) 
according  to  the  true  intent  and  meaning  of  such 


The  circuit  courts  of  the  United  States  have  jurisdiction  of 
suits  brought  in  the  name  of  the  postmaster-general,  on  bonds 
given  by  deputy  postmasters,  conditioned  to  pay  all  moneys 
that  shall  come  to  their  hands  for  the  postages  of  w^hatever  is 
by  law  chargeable  vv^ith  postage,  deducting  only  the  commission 
and  allowance  made  by  law  for  their  care,  trouble  and  charges 
in  managing  such  offices.  P.  M.  General  vs.  Early,  12  Whea. 
136  ;  6  Cond.  480. 

See  also,  Kendall  vs.  TJte  United  States,  12  Pet.  524.  P.  M. 
General  vs.  Furher,  4  Mason,  333.  P.  M.  General  vs.  Recder, 
4  Wash.  678.  P.  M.  General  vs.  Norvell,  Gilpin,  106.  P.  M. 
General  vs.  Rice,  Gilpin,  554.  United  States  vs.  Bcleiv,  2  Mar. 
Dec.  280.  United  States  vs.  BanJc  of  Metropolis,  15  Pet.  377. 
Jones  vs.  United  States,  7  Howard,  681.  United  States  vs. 
Broim,  9  How.  487. 


CIRCUIT  COURTS.  173 


award,  arbitration  or  decree ;  and  for  this  purpose   actm&io. 
shall  have  full  authority  to  issue  all  proper  reme-  ^'<»y  issue 

process 

dial  process,  mesne  and  final,  to  carry  into  full  and  arrest 

andretaio. 

effect  such  award,  arbitration  or  decree,  and  to 
enforce  obedience  thereto,  by  imprisonment  in 
the  common  jail  or  other  place  of  imprisonment 
in  the  district,  in  which  the  United  States  may 
lawfully  imprison  any  person  arrested  under  the 
authority  of  the  United  States,  until  such  award, 
arbitration  or  decree  shall  be  complied  with,  or 
the  parties  shall  be  otherwise  discharged  there- 
from, by  the  consent,  in  writing,  of  such  consuls, 
vice-consuls  or  commercial  agents,  or  their  suc- 
cessors in  office,  or  by  the  authority  of  the  foreign 
government  by  which  such  consuls,  vice-consuls 
or  commercial  agents  are  appointed. 

The  expenses  are  to  be  borne  by  such  foreign  ho^^J®bo"e 
consuls,  &:c.,  and  the  marshals  are  required  to 
serve  all  process  in  the  premises.     Actj   1846, 
ch.  105. 


APPELLATE    JURISDICTION    FROM    DISTRICT    COURTS. 

The  circuit  courts  (1)  shall  have  appellate  juris-  act,  i769. 

diction  from  the  district  courts,  under  the  regula-  Appellate 

tioiis  and  restrictions  hereinafter  provided.     Act,  tSoirgene- 

1789,rA.20,  §  11.  '■'"^■- 


(1)  The  jurisdiction  of  the  supreme  court  is  pointed  out  by 
the  constitution.  But  the  distribution  of  the  powers  of  the 
inferior  courts  is  regulated  and  governed  by  the  laws  by  which 


174  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ON    WRIT    OF    ERROR. 

ACT,  1789.        Final  decrees  and  judgments  (1)  in  civil  actions  in 
ou  writs     a  district  court,  where  the  matter  in  dispute  ex- 
ceeds the  sum  or  vakie  of  fifty  dollars,  exclusive  of 
costs,  maybe  re-examined  and  reversed  or  affirm- 
ed, in  a  circuit  court  liolden  in  the  same  district, 
upon  a  tcrit  of  error,  whereto  shall  be  annexed 
and   returned   therewith,  at  the  day  and  place 
therein  mentioned,  an  authenticated  transcript  of 
Transcript  ^^^  rccord,  au  assignment  of  errors,  and  prayer 
Citation  to  fof  revcrsal,  with  a  citation  to  the  adverse  party, 
partyT      slgucd  by  tlic  judgc  of  such  district  court,  or  a 


they  are  constituted.  The  circuit  courts  have  no  supervising 
power  or  control  over  the  district  courts,  other  than  is  given 
by  the  laws  of  the  United  States  ;  which  is  to  compel  a  rendi- 
tion of  a  judgment  or  decree,  and  to  re-examine  it  on  error  or 
appeal.     Smith  vs.  Jackson,  Paine,  453. 

(1)  The  twenty  days'  notice  which  the  adverse  party  is  to 
have  ujion  the  allowance  of  a  writ  of  error,  is  understood  to 
be  twenty  days  before  the  return  of  the  writ.  Yeaton  vs.  Lenox, 
7  Pet.  220. 

The  22d  section  of  the  original  judicial  act,  limiting  the 
period  within  which  writs  of  error  may  be  brought,  to  five 
years  after  the  rendition  of  the  judgment  or  decree  complained 
of,  applies  only  to  writs  or  error  in  law,  and  does  not  extend 
to  writs  of  error,  coram  nohis.  Strode  vs.  The  Stafford  Justices, 
1  Mar.  Dec.  162. 

A  writ  of  error  is  the  proper  process  to  correct  the  errors 
of  the  district  court  in  common  law  cases.  United  States  vs. 
Wonson,  1  Gall.  5.      United  States  vs.  Haynes,  2  McLean,  155. 

See  also,  references  to  division  "Supreme  Court,"  ante,  page 
110  ;  and  title  Practice,  Holcombe's  Digest. 


CIRCUIT  COURTS.  175 


At;T,  17S9. 


justice  of  the  supreme  court,  the  adverse  party 

reversal ; 


having  at  least  twenty  days'  notice.     But  there  ^vhen,,.. 


shall  be  no  reversal  on  such  writ  of  error  for  error 
in  ruling  any  plea  in  abatement,  other  than  a  plea 
to  the  jurisdiction  of  the  court,  or  such  plea  to  a 
petition  or  bill  in  equity,  as  is  in  the  nature  of  a  wuhin 

*  1         ^  »  ^  what  time 

demurrer  or  for  an  error  in  tact.   And  writs  of  error  n.ust  be 

brought ; 

shall  not  be  brought  but  within  five  years  after  ren- 
dering or  passing  the  judgment  or  decree  complain- 
ed of,  or  in  case  the  person  entitled  to  such  writ  of 
error  be  a  miant,femc  covert,  non  compos  mentis,  or 
imprisoned,  then  within  five  years  as  aforesaid,  ex- 
clusive of  the  time  of  such  disability.  And  every 
justice  or  judge  signing  any  citation,  or  any  writ 
of  error  as  aforesaid,  shall  take  good  and  suffi- 
cient security,  that  the  plaintiff  in  error  shall  pro- 
secute his  writ  to  etVect,  and  answer  all  damages 
and  costs  if  he  fail  to  make  his  plea  good.  Act, 
1789,  ch.  20,  §  22.     See,  however,  Act,  1803,  ch.  40. 

A  writ  of  error  shall  be  a  supersedeas  and  stay  J,e'a7iipcr- 
execution  in  cases  only  where  the  writ  of  error  ^edeas; 
is  served  by  a  copy  thereof  being  lodged  for  the 
adverse  party  in  the  clerk's  office,  where  the  re- 
cord remains,  within  ten  days,  Sundays  exclusive, 
after  rendering  judgment,  or  passing  the  decree 
complained  of  Until  the  expiration  of  which  term 
of  ten  days,  executions  shall  not  issue  in  any 
case  where  a  writ  of  error  may  be  a  supersedeas; 
and  where  upon  such  writ  of  error,  the  supreme 
or  a  circuit  court  shall  affirm  a  judgment  or  de- 


176  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  17S9. 


costs  on 
affirmauce 


cree,  they  shall  adjudge  or  decree  to  the  respon- 
dent in  error,  just  damages  for  his  delay,  and 
single  or  double  costs  at  their  discretion.  Act, 
1789,  ch.  20,  §  23. 
ACT,  1794.  The  security  to  be  required  and  taken  on  the 
Security     signing  of  a  citation  on  any  writ  of  error,  which 

when  is  i      n  i  n  i 

not  a  su-     shall  uot  be  a  supersedeas  and  stay  execution, 

136t*S6Q63,S 

shall  be  only  to  such  an  amount,  as  in  the  opinion 
of  the  judge  or  justice  taking  the  same,  shall  be 
sufficient  to  answer  all  such  costs  as,  upon  an 
affirmance  of  the  judgment  or  decree,  may  be 
adjudged  or  decreed  to  the  respondent  in  error. 
Act,  1794,  ch.  3,  3^/  Con.  Scss.  2. 


ON    APPEAL. 


ACT,  1789. 


Yiom.  Jinal  decrees  (1)  in  a  district  court  in  cases 
wheriies.   of  admiralty  afid  maritime  jurisdiction,  where  the 

(1)  No  appeal  lies  from  the  district  court  to  the  circuit  court, 
in  any  causes,  except  civil  causes  of  admiralty  and  maritime 
jurisdiction.  United  States  vs.  Wbnson,  1  Gall.  5.  United 
States  V8.  Haynes,  2  McLean,  155.  McLellan  vs.  United  States. 
1  Gall.  227,  229. 

The  act  of  1803  has,  how^ever,  extended  the  rights  of  appeal, 
to  all  final  judgments  and  decrees. 

Of  the  meaning  of  the  word  "  Appeal,"  and  the  nature  of 
appeals  in  the  civil  law,  and  in  admiralty  causes  United 
States  vs.  Wonson,  1  Gall.  5,  12,  16,  21. 

In  admiralty,  an  appeal,  to  he  effectual,  must  be  taken  in 
open  court,  and  l>e  entered  before  the  adjournment  sine  die,  of 
the  district  court,  unless  a  different  time  is  specially  allowed 
by  the  district  court,  or  prescribed  by  the  general  rules.      The 


CIRCUIT  COUKTS.  17 


matter   in    dispute   exceeds   the   sum   or  value    ^'^'[^'' 
of  three  hundr(>d  dollars,  exclusive  of  costb,  an 

Steamboat  Ncio-England,  3  Sum.  495,  Norton  vs.  Rich,  3  Ma- 
son, 443. 

A  party  may  appeal  from  an  interlocutory  decree,  liavinju^ 
the  effect  of  a  final  decree;  or  may  wait  until  llie  final  decree 
is  actually  entered  and  then  appeal.     Ibid. 

No  appeal  lies,  by  any  party,  from  a  decree  of  a  district 
court,  unless  on  his  part  the  matter  in  dispute  exceeds  the  sum 
or  value  of  fifty  dollars.     Shirley  vs.  Titus,  1  Sura.  447. 

An  appeal  must  he  prayed  for  and  allowed  to  the  next  cir- 
cuit court  held   within  tlu;  dislrict.      U?)/fri7  S/dfoi  vs.  Haijncs, 

2  McLean,  155. 

In  cases  of  appeals,  the  court  is  very  cautious  in  admitting 
new  matters  of  defence  or  allegation  to  be  introduced,  where 
the  facts  are  not  new  or  newly  discovered.     Cojin  vs.  Jenhim, 

3  Story,  lOS. 

If  a  final  decree  be  not  apj)ealed  from,  no  appeal  lies  upon 
any  subsequent  proceedings.     Brig  Holhn,  1  Mason,  431. 

In  suits  for  assaults  and  batteries  on  the  high  seas,  no  appeal 
ran  be  sustained  from  a  decree  of  the  district  court,  unless 
there  be  an  ad  dumf/um  laid  in  the  libel,  exceeding  fifty  dollars. 
Jenli.s  vs.  Lcifis,  3  Mason,  503. 

An  appeal  may  be  sustained  in  part,  and  be  dismissed  as  to 
part.      Wcscot  vs.  Bradford,  4  Wash.  492. 

The  rules,  regulations  and  restrictions  contained  in  the  22d 
and  23d  sections  of  the  act  of  1789,  respecting  the  time  within 
which  a  writ  of  error  may  be  brought,  and  in  what  instances 
it  shall  operate  as  a  supersedeas  ;  the  citation  to  the  adverse 
party ;  the  security  to  be  given  ;  and  the  restrictions  upon  the 
appellate  court  in  certain  cases,  ai-e  applicable  to  appeals  under 
tlie  act  of  1803,  and  are  to  be  substantially  observed,  except 
thai  where  the  appeal  is  prayed  at  the  same  term  where  the 
decree  or  sentence  is  made,  a  citation  is  not  necessary.  The 
S,if!  Pedro,  2  Whea.  132  ;  4  Cond.  65,  69.  Reih/  vs.  Lamar, 
12 


178  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT^7s<).    appeal  shall  be  allowed  to  the  next  circuit  court 
to  be  held  in  such  district.     Jet,  1 789,  ch.  20,  §  2 1 . 
See,  however,  Act,  1803,  cJi.  40,  following: 
ACT,  1603.       From  nil  final  judgments  and  deci'ecs  in  any  of 
AVheii  un-  the  district  courts  of  the  United  States,  an  appeal, 
1803.         where  the  matter  in  dispute,  exclusive  of  costs, 
shall  exceed  the   sum  or  value  of  fifty  dollars 
shall  be  allowed  to  the  circuit  court  next  to  be 
holden  in  the  district,  where  such  final  judgment, 
or  judgments,  decree  or  decrees,  may  be  rendered  ; 
and  the  circuit  court  or  courts  are  hereby  autho- 
rized and  required  to  receive,  hear  and  determine 
such  appeal.     Act,  1803,  ch.  40. 

2  Cra.  349  ;   1  Cond.  419,  sustaining  last  clause  of  above  opi- 
nion. 

An  appeal  under  the  acts  of  1789  and  1803,  prayed  for  and 
allowed  within  five  years,  is  valid,  although  the  security  was 
not  given  until  after  five  years.  The  mode  of  taking  the  secu- 
rity and  the  time  for  perfecting  it,  are  within  the  discretion  of 
the  court.     The  Dos  Hennanos,  10  Whea,  306;  7  Cond.  109. 

Since  the  act  of  1803,  ch.  40,  in  admiralty  as  well  as  in  equity 
causes  carried  up  to  the  supreme  court,  the  evidence  goes  with 
the  cause,  and  and  it  must  consequently  be  in  writing.  Anon. 
1  Gall.  25.      The  Schooner  Boston,  1  Sum.  328. 

See  also,  Wcscot  vs.  Bradford,  4  Wash.  492. 

In  admiralty,  a  suit  on  a  money  demand  already  due  and 
payable,  under  850.00,  but  which  with  the  addition  of  interest 
exceeded  $50.00  at  the  time  the  decree  was  entered,  and  upon 
which  a  decree  for  more  than  $50.00  was  rendered,  is  appeal- 
able under  the  acts  of  congress,  and  by  the  rules  of  this  court 
is  a  plenary  action  and  cames  full  costs.  Godfrey  vs.  Gilmar- 
t'm ;  MSS.  South.  Dist.  N.  Y.  Dist.  Court,,  Oct.  15,  Judges 
Nelson  and  Betts. 


CIRCUIT  COURTS.  179 


JUDGMENT    ON    REVERSAL. 

When  a  judgment  or  decree  shall  he  reversed    act,  wm. 
in  a  circuit  court,  such  court  shall  proceed  to  judgment 
render  such  judgment,  or  pass  such  decree  as  the  sa'i'**  "^ 
district  court  should   have  rendered  or  passed. 
Act,  1789,  ch.  20,  §  24. 

JUDGMENT    ON    APPEAL    OR    WRIT    OF    ERROR. 

In  all  cases  which,  by  appeal  or  writ  of  error,    ^^"^'^■ 
are  or  shall  be  removed  from  a  district  to  a  circuit  J'ldgmeut 

when  to 

court,  judgment  shall  be  rendered  in  conformity  ^® '"  ^^■ 

,     ,  cordance 

to  the  opinion  of  the  judge  of  the  supreme  court  withopi- 
presiding  in  such  circuit  court.     Act,  1802,  ch.  31,  justice  of 

sn[)reine 
^  5.  court. 


FROM    FINAL    DECREES    RENDERED    IN    STATE    COURTS 
IN    SUITS    ON    FORFEITURES,    ETC. 

By  the  act  hereafter  cited,  state  and  county  ^^^^'^• 
courts,  within  or  next  adjoining  any  collection  Appe'l'^'^ 
district  established  by  cono:ress,  were  authorized  '^'""  \" 

''  o  '  cases  from 

to  take  cognizance  of  all  complaints,  suits  and  ^'•'^'''   . 

^  *  courts  in 

prosecutions  for   taxes,    duties,    fines,  penalties,  s"i'.^'""- 

■"■  forJeiiiires 

and  forieitures  arising  and  payable  under  any  of 
the  acts  of  congress  for  the  collection  of  taxes  or 
internal  duties  of  the  United  States ;  such  juris- 
diction attached  without  regard  to  the  amount 
or  sum  in  controversy,  and  was  concurrent  with 
the  district  courts. 

Final  decrees  and  judgments  in  civil  actions, 
passed  or  rendered  in  any  state  court  by  virtue 


180  JURISDICTION  OF  THE  FEDERAL  COURTS. 

AC1M813.  thereof,  may  he  re-examined  in  the  circuit  courts 
of  the  United  States,  in  the  same  manner  and 
under  the  same  limitations  as  are  prescribed  by 
the  twenty-second  section  of  the  act  to  establish 
the  judicial  courts  of  the  United  States,  passed 
the  twenty- fourth  of  September,  seventeen  hun- 
dred and  eighty-nine.     Act,  1815,  ch.  lOJ,  §§  1,  2. 

IN    CASES    OF    DISTRESS    WARRANTS. 

ACT^B.o.        The  act  of  1820,  ch.  1 07,  authorizes  the  issuing 
Appellate    of  distrcss  Warrants  against  any  delinquent  dis- 

juiisflic- 

tiori  from    burslug  officcr  of  the  moneys  of  government ;  and 

decisions 

of  district  also  provided  that  if  any  person  felt  himself  ag- 
cases  of     grlcvcd  by  the  issuing  of  any  such  warrant,  he 

distress 

warrants,  might  prcfcr  his  complaint  to  a  district  judge, 
who  was  empowered  to  issue  an  injunction,  if 
he  thought  proper,  arid  that  the  same  proceeding 
should  be  had  upon  such  injunction,  as  in  other 
cases.  And  it  was  further  provided,  "  that  if  any 
person  shall  consider  himself  aggrieved  by  the 
decision  of  such  judge,  either  in  refusing  to  issue 
the  injunction;  or,  if  granted,  on  its  dissolution, 
it  shall  be  competent  for  such  person  to  lay  a 
copy  of  the  proceedings,  had  before  the  district 
judge,  before  a  judge  of  the  supreme  court,  to 
whom  authority  is  hereby  given,  either  to  grant 
the  injunction,  or  permit  an  appeal,  as  the  case 
may  be,  ifj  in  the  opinion  of  such  judge  of  the 
supreme  court,  the  equity  of  the  case  requires  it: 
and  thereupon  the  same  proceedings  shall  be  had 


CIRCUIT  COURTS.  181 


upon  siir-h  injunction  in  the  circuit  court,  as  are    act^pm 
prescribed  in  the  district  court,  and  subject  to  the 
same  conditions  in  all  respects  whatever."     Acf, 
1820,  <:h.l07,  §§3,  4,  6. 


CASES    OF    HABEAS    CORPUS    UNDJCR    THE    MCLEOD 
ACT. 

By  the  habeas  corpus  act  of  1842,  the  justices    **^Tl! 
of  the  supreme  court,  or  a  judge  of  the  district  jJ/r^'Jc'^ 
court,  were  empowered  to  grand  the  writ  oi habeas  cases'of 
corpus  when  the  suhjects  of  foreign  states  are  in  '^^''«''''' 

±  JO  corpus 

custody  of  the  United  States,  or  any  one  of  them,  ^^  ?',",!""' 
on  account  of  any  act  done,  or  omitted  under  any  -^*Leod 
alleged  right  or  authority,  set  up  or  claimed  under 
the  commission  or  order  or  sanction  of  any  foreign 
state  or  sovereignty,  the  validity  and  effect  where- 
of depends  upon  the  law  of  nations,  or  under 
color  thereof 

From  any  decision  of  such  justice  or  judge,  an 
appeal  may  be  taken  to  the  circuit  court  of  the 
United  States  for  the  district  in  which  the  said 
cause  is  heard.     Act,  1842,  ch.  257. 


JURISDICTION 


FEDERAL  COURTS  OF  THE  UNITED  STATES. 


DISTRICT  COURTS. 


DISTRICT    COURTS 

ORGANIZATION  AND  ADJOURNMENT  OF. 


The  district  courts  are  held  by  the  district  judge,    actvitso 
who  is  required  to  reside  in  the  district  for  which  District 

^  courts  l.y 

he  is  appointed.     Jet,  1789,  ch.  20,  6  3.  ,^vhoir. 

^  held. 

The  sessions  of  these  courts  are  held  at  the  Terms  of; 
tunes  and  places  appointed  by  law;  and  special 
sessions  may  be  held  at  the   discretion  of  the 
judge.     Act,   1789,  ch.  20,  §3. 

In  case  of  the  inability  of  the  judge  to  attend  *^T^^"^- 
on  the  day  appointed  for  the  holding  a  stated  or  ^^  ~,j. 
special  or  adjourned  term  of  the  court,  the  court  ^^ats. 
may,  by  a  written  order  from  the  judge  thereof, 
directed  to  the  marshal  of  the  district,  be  adjourn- 
ed to  the  next  stated  term  of  the  court,  or  to  such 
day  prior  thereto,  as  may  be  appointed  in  such 
order.     Act,  1799,  ch,  12,  §  6.     And  whenever  a 
contagious  sickness  shall  render  it  hazardous  to 
hold  any  term  of  the  court,  the  judge  thereof,  by 
order  issued  to  the  marshal  of  the  district,  may 
adjourn  the  same  to  some  convenient  place  with- 
in the  district.      Acty  1799,  ch.  12,  §  7. 


186  JURISDICTION  OF  THE  FEDERAL  COURTS 


ACTJ850.        jjj  (>j^gg  of  ^i^g  sickness  or  other  disability  of  a 
whenheid  district  iiidffe,  to  hold  any  term  of  a  district  court, 

by  another  J        f^    '  J     ^  .         ,  ■■ 

judge-  in  hig.district,  or  of  a  circuit  court,  in  the  absence 
of  a  circuit  judge,  upon  such  fact  being  certified 
by  the  clerk  to  the  circuit  judge,  such  judge  may 
appoint  any  other  district  judge  of  any  other  judi- 
cial district  to  hold  such  term  of  the  court.  In 
case  of  the  non-residence  or  inability  of  the  cir- 
cuit judge  to  make  such  appointment,  the  clerk 
may  certify  the  same  facts  to  the  chief  justice  of 
the  United  States,  who  may  make  such  an  ap- 
pointment. A  new  designation  and  appointment 
of  any  other  district  judge  may  be  made  when 
necessary.     Act,  1850,  ch.  30,  §§1,2,  4. 

D.'ath  of        In  case  of  the  death  of  a  district  iudge,(l)  and 

distnct 

judge,       his  vacancy  not  being  supplied,  all  process,  plead- 

eliect  of. 

ings  and  proceedings,   of  what   nature   soever, 
pending  before  a  district  court,  shall  be  continued 

(1)  Where  a  cause  was  removed  by  certiorari  from  a  district 
court  to  a  circuit  court  under  the  act  of  1809,  ch.  20,  §  6,  on 
account  of  the  disabihty  of  the  circuit  judge,  and  after  the  is- 
suing of  the  order,  but  before  the  commencenent  of  the  term 
of  the  circuit  court,  the  district  judge  died,  it  was  held  that  the 
cause  must  be  certified  back  to  the  district  court ;  since  the  act 
of  1809  only  provided  for  the  case  of  disability,  and  the  act  of 
1789  required,  that  in  cases  of  death,  all  causes  were  continued 
of  course  to  the  next  term  of  the  district  court.  Ex  parte  the 
United  States,  1  Gall.  338. 

Judgments  and  decrees  of  circuit  and  district  courts  in  any 
state  cease  to  be  liens  on  real  estate  or  chattels  real,  in  the 
same  manner  and  at  like  periods  as  judgments  and  decrees  of 
the  courts  of  such  state.     Act  1840,  ch.  43,  §  4. 


DISTRICT  COURTS.  197 


of  course  until  the  next  stated  session  after  the    a^t.  i?*. 
appointment  and  acceptance  of  office  by  his  suc- 
cessor.    Act,  1789,  c/i,  20,  §  6. 

For  limes  when  the  district  courts  in  the  va- 
rious districts  have  their  sessions.     See  Appendix. 

.Judgments  and  decrees  docketed  in  the  United  States  courts 
are  liens  upon  lands  situated  any  where  within  the  district,  and 
it  is  not  necessary  to  file  a  transcript  in  any  state  office. 

State  laws  limiting  the  period  of  a  lien  apply  to  judgments 
and  decrees  of  United  States  courts  ;  but  state  acts  prescribing 
what  acts  arc  necessary  to  be  done  to  create  or  make  a  lien, 
do  not  embrace  those  judgments  and  decrees. 

The  above  opinions  declared  by  judges  Nelson  and  Betts, 
in  the  case  of  Crandall,  resjy.  and  Cleaveland  Stip.  ads.  Cropsey, 
MSS.,  Oct.  15,  1851;  Dist.  Court,  South.  Dist.  of  New- York, 
where  execution  had  been  levied  upon  lands  in  another  county 
than  that  in  which  judgment  had  been  rendered,  and  where  no 
transcript  had  been  filed,  on  a  motion  to  set  aside  the  execu- 
tion, because  no  lien  had  been  acquired  under  the  laws  of  the 
state  of  New  York. 

In  pleading  judgments  of  the  United  States  courts,  it  is  not 
necessary  to  show  that  they  had  jurisdiction.  Bement  vs.  Wis- 
ner.  Sup.  Ct.  New-York,  1  Code.  Reports,  N.  S.  143. 

It  is  universally  understood  that  the  judgments  of  the  courts 
of  the  United  States,  although  their  jurisdiction  be  not  shown 
on  the  pleadings,  are  yet  binding  on  all  the  world :  and  that 
though  erroneous,  they  are  binding  until  reversed;  and  that 
want  of  jurisdiction  can  only  be  made  available  on  a  writ  of 
enor.     Ex  parte  Watkins,  7  Pet.  193,  207. 


JURISDICTION 


FEDERAL    COURTS. 


DISTRICT    COURTS. 


GENERAL     JUllISDICTIOK. 

The  district  courts  (1)  shall  have,  exclusively  of  Acrjres 
the  courts  of  tJie  several  slates,  cognizance  of  all  r)istrict 

courts, 

(1)  Punishment  by  whipping,  and  hy  standing  in  the  pillory, 
abolished  by  Acts  1839,  ch.  36,  §  5,  and  1842,  ch.  188,  §  4. 

By  a  late  act  of  Congress,  the  district  courts  have  jurisdiction, 
concurrent  with  the  circuit  courts,  of  all  crimes,  except  in  ca- 
pital cases.     Act  1842,  ch.  188,  §  3.     See  same,  postea. 

Admiralty  jurisdiction  now  extends  over  the  lakes  and  inland 
waters.     Act  1845,  ch.  20.     See  s,:i.vne,  postea. 

In  cases  where  the  United  States  sue,  jurisdiction  now  at- 
taches without  regard  to  amount.  Act  1815,  ch.  101,  §  4.  See 
.same,  postea. 

The  principles  of  the  common  law  arc  inapplicable  to  pro- 
cess and  proceedings  in  courts  of  admiralty.  Clarhe  vs.  Neiv- 
Jerscy  Steam  Nav.  Com.,  1  Story  531  ;  S.  C.  4  Law  Rep.  134. 
Ehvcll  vs.  Mart'm,  Ware  53.    Brown  vs.  Lull,  2  Sum.  443. 


190  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV1789.   crimes  and  offences  that  shall  be  cognizable  under 
cogniz'nce  tlic  autliorlty  of  the  United  States,  committed 

ot  crimes, 

&c. 

The  rules  of  pleading  in  the  admiralty  do  not  require  all  the 
technical  precision  which  is  required  by  the  common  law;  but 
they  require  that  the  cause  of  action  should  be  clearly  set  forth, 
so  that  a  plain  and  direct  issue  may  be  made  up  on  the  charge, 
and  the  evidence  must  be  confined  to  the  matter  in  issue. 
Jenks  vs.  Lewis,  Ware  51.  Ellison  vs.  Shift  Bellona,  Bee  106. 
Brig  Sarah  Ann,  2  Sum.  206.  Brown  vs.  Lull,  2  Sum.  443. 
Sckr.  Hoppet  vs.  United  States,  7  Cra.  389  ;  2  Cond.  542.  Brig 
Caroline  vs.  United  States,  7  Cra.  496  ;  2  Cond.  584.  Schr. 
Anne  vs.  United  States,  7  Cra.  570  ;  2  Cond.  611.  The  Samuel, 
1  Whea.  9  ;  3  Cond.  446.  The  Merino,  9  Whea.  391 ;  5  Cond. 
623.     The  Palmyra,  12  Whea.  1 ;  6  Cond.  397. 

The  district  courts,  in  their  practice,  follow  the  general  lules 
of  the  admiralty.     Jennings  vs.  Carson,  4  Cra.  2 ;  2  Cond.  2. 

Decisions  under  the  13  and  15  statutes  of  Rich.  II.  are  not 
binding  on  the  courts  in  this  country.  Steele  vs.  Thacher,  Ware 
91. 

The  subject  matter  of  the  controversy  generally  determines 
the  question  of  admiralty  jurisdiction.  Davis  vs.  a  new  brig, 
Gilpin  473.  Sloop  Mary,  Paine  671.  Zane  vs.  Brig  President, 
4  Wash.  453. 

Each  district  court  of  the  United  States  possesses  all  the 
powers  of  a  court  of  admiralty,  whether  considered  as  an  in- 
stance or  prize  court.  Glass  vs.  Sloop  Betsy,  3  Dall.  6;  1  Cond. 
10  ;  4  Dall.  426,  429.  The  Amiable  Nancy,  Paine  111 ;  S.  C. 
13  Whea.  546,  4  Cond.  322.  Burke  vs.  Trevitt,  1  Mason  96. 
Penhallow  vs.  Doane's  admWs,  3  Dall.  54,  1  Cond.  21.  Broicn 
vs.  United  States,  8  Cra.  110;  3  Cond.  56. 

As  to  how  far  the  district  courts,  when  sitting  as  instance 
courts,  are  to  regard  the  law  of  the  admiralty  court  of  England 
on  questions  of  jurisdiction  and  rules  of  decision,  Zane  vs.  Brig 
President,  4  Wash.  453. 


DISTRICT  COURTS.  191 


within  their  respective  districts,  or  upon  the  high    '^'  t.  itw. 
seas,  where  no  other  punishment  than  whipping, 

As  to  cases  oi prize,  see  fui'tlier  Jennings  vs.  Carson,  4  Cra. 
2  ;  2  Cond.2.    The  XJlpiano,  1  Mason  91.    The  St.  Lawrence, 

2  Gall.  20.  Mahoon  vs.  Brig  Glocester,  Bee  395. 

They  have  at  least  as  full  a  juris<liction  as  the  admiralty  in 
England.  Per  Mr.  J.  vStory,  Brown  vs.  United  States,  8  Cra. 
110,  137. 

Their  decrees  are  final  as  to  the  matters  in  controversy,  and 
cannot  be  inquired  into  in  another  admiralty  court.  Penhallow 
vs.  Doanc's  admWs,  3  Dall.  54  ;   1  Cond.  21. 

An  information  against  a  vessel,  under  the  act  of  1794,  for 
an  alleged  exportation  of  arms,  is  a  case  of  admiralty  and  ma- 
ritime jurisdiction.  It  is  also  a  civil  cause,  and  triable  without 
the  intervention  of  a  jury.      United  States  vs.  L>a  Vengeance, 

3  Dall.  297;   1  Cond.  132. 

In  cases  of  seizure  made  on  land,  the  district  courts  proceed 
as  courts  of  common  law,  and  the  trial  of  issues  of  fact  is  by  a 
jury  :  in  seizures  on  water,  it  proceeds  as  an  instance  court,  and 
the  trial  is  to  be  by  the  court.  The  jurisdictions  and  proceed- 
ings are  distinct.      The  Sarah,  8  Whea.  391 ;  5  Cond.  472. 

When  the  seizui-e  is  made  within  the  limits  of  any  judicial 
district,  the  district  court  of  that  district  has  exclusive  cogni- 
zance ;  but  the  cognizance  of  seizures  on  the  high  seas  bclono-s 
to  any  district  court  into  which  the  property  is  brought.  Sloop 
Abhy,  1  Mason  360.'  The  Meri7io,  9  Whea.  391 ;  5  Cond.  623. 
Brig  Little  Ann,  Paine  40. 

The  revenue  jurisdiction  of  the  district  courts,  proceeding 

in  rem,  only  extends  to  cases  of  seizure  for  forfeiture  under  laws 

of  impost,  navigation  or  ti-ade.     Hence  those  courts  have  no 

jurisdiction,  by  way  of  libel,  to  enforce  the  payment  of  duties. 

United  States  vs.  Chests  of  tea,  12  Whea.  4SG,  6  Cond.  593. 

See  also  in  respect  to  seizures,  Slocu7n  vs.  Mayberry,  2  AVliea. 
1,  4  Cond.  1.  Gelston  vs.  Hoyt,  3  \Vliea.  246,  4  Cond.  244. 
Schr.  Bolina,  1  Gall.  75.     Burke  vs.  Trevitt,  1  Mason,  96. 


192  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT^789.    jjqi^  exceeding  thirty  stripes,  a  fine  not  exceeding 
one  hundred  dollars,  or  a  term  of  imprisonment 

The  district  courts  have  exclusive  jurisdiction  of  forfeitures. 
Hall  vs.  Warren,  2  McLean,  332. 

As  to  the  admiralty  jurisdiction  in  cases  of  Salvage,  Mate- 
rial Men,  Colluian,,  Wages,  Pilotage,  Hypothecation,  and  Bot- 
tomry Bonds,  see  "Admiralty  Rules,"  under  those  titles. 

See  also,  in  respect  to  Charter  Parties,  Schr.  Volunteer,  1 
Sum.  551 ;  Certain  Logs  of  Mahogany,  2  Sura.  589  ;  Bills  of 
Ransom,  Maisonnaire  vs.  Keating,  2  Gall.  341 ;  and  generally. 
Brig  Alerta,  9  Cra.  359  ;  3  Cond.  425.  The  Josefa  Segunda, 
10  Whea.  312 ;  6  Cond.  111.  Hudson  vs.  Guestier,  6  Cra.  281 ; 
2  Cond.  374.  Brown  vs.  United  States,  8  Cra.  110;  3  Cond. 
56.  Thomson  vs.  The  Ship  Catharine,  Peters  Adm.  Dec.  104. 
U Arina  vs.  Manwaring,  Bee,  199.  Bains  vs.  Schr.  Jamesand 
Catharine,  Baldw^in,  544,  567. 

The  district  courts,  in  admiralty,  though  unlimited  as  to  the 
subject  matter  over  which  they  have  cognizance,  are  neverthe- 
less limited  in  point  of  locality,  as  they  cannot  send  their  pro- 
cess out  of  their  particular  district.  Ex  parte  Graham,  4  Wash. 
211. 

Where  the  district  and  state  courts  have  a  concurrent  juris- 
diction, the  right  to  maintain  the  jurisdiction  attaches  to  that 
tribunal  which  first  exercises  it.  Ship  Robert  Fulton,  Paine 
620. 

The  district  courts,  as  courts  of  adrriiralty  and  maritime 
jurisdiction,  may  entertain  suits  for  all  torts,  damages  and  un- 
law^ful  seizures  at  sea;  and  as  a  court  of  revenue,  may  enter- 
tain suits  for  the  trial  of  property  seized  for  violation  of  muni- 
cipal law^ ;  and  as  incident  to  this  jurisdiction  may  compel  a 
redelivery  of  the  property,  and  award  damages  for  any  loss  of, 
or  injury  to  it.  Burke  vs.  Trevitt,  1  Mason,  96.  See  also  note 
to  Rule  16,  "  Admiralty  Rules." 

The  courts  of  the  United  States  have  exclusive  jurisdiction 
of  all  seizures  made  on  land  or  water,  for  a  breach  of  the  laws 


DISTRICT  COURTS.  193 


not  exceeding  six  months,  is  to  be  inflicted;  and   ac-m^w. 
shall  also  have  exclusive  orimnal  cognizance  of  all  of  causcB 

<-J  <->  of  admiral- 

civil  causes  of  admiralty  and  maritime  iurisdic-  'yau.imu 

•^  ntima  ju- 

of  the  United  States  ;  and  any  intervention  of  a  state  autliority, 
which,  by  taking  the  thing  seized  out  of  the  liands  of  the  United 
States  officer,  might  obstruct  the  exercise  of  this  jurisdiction, 
is  illegal.     Slomm  vs.  MayherrTj,  2  Wliea.  1  ;  4  Cond.  1. 

As  an  abstract  question,  it  is  difficult  to  understand  on  what 
ground  a  state  court  can  claim  jurisdiction  of  civil  suits  against 
foreign  consuls.  By  the  constitution,  the  judicial  power  ex- 
tends to  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls  ;  and  the  judiciary  act  of  1789  gives  to  the  district 
courts,  exclusively  of  the  courts  of  the  several  states,  jurisdic- 
tion of  all  suits  against  consuls  and  vice-consuls,  except  for 
certain  offences  enumerated  in  that  act.  Davis  vs.  Packard,  7 
Pet.  276. 

If  a  consul,  being  sued  in  a  state  court,  omits  to  plead  his 
privilege  of  exemption  from  the  suit,  and  afterwards,  on  re- 
moving the  judgment  of  the  inferior  court  to  a  higher  court  hy 
writ  of  error,  claims  the  privilege,  such  an  omission  is  not  a 
waiver  of  the  privilege.  If  it  was  to  be  viewed  merely  as  a 
personal  privilege,  there  might  be  grounds  for  such  a  conclusion; 
but  it  can  not  be  so  considered  :  it  is  the  privilege  of  the  coun- 
try or  government  which  the  consul  represents.  This  is  the 
light  in  which  foreign  ministers  are  considered  by  the  law  of 
nations,  and  our  Constitution  and  laws  seem  to  put  consuls  on 
the  same  footing  in  this  respect.     Ibid. 

Proceedings  by  libel  and  process  of  arrest,  and  by  attach- 
ment, were  taken  against  the  commander  and  an  armed  vessel 
of  the  French  Republic,  for  an  alleged  illegal  capture,  on  the 
high  seas,  of  a  neutral  merchant  vessel,  the  property  of  a  citizen 
of  the  State  of  Pennsylvania  ;  the  commander  and  the  armed 
vessel  being  in  the  poit  of  Philadelphia.  The  supreme  court 
granted  a  writ  of  prohibition  to  the  district  judge ;  by  which 

13 


194  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTW789.   xiQYi^  including  all  seizures  under  laws  of  impost, 
risdiction    navigation,  or  trade  of  the  United  States,  where 

and  801-  '^   ,  1   .    1 

ETires  oa    the  sejzures  are  made  on  waters  which  are  navi- 

wator. 

further  proceedings  were  prevented,  as  the  district  court  had 
no  jurisdiction.  United  States  vs.  Peters,  3  Dall.  121  :  1  Cond, 
GO. 

For  a  full  examination  of  the  lav/  concerning  admiralty 
jurisdiction  in  cases  of  maritime  contract,  and  in  cases  of  torts 
and  injuries  received  on  the  high  seas,  see  De  Lovio  vs.  Boit, 
2  Gall.  398. 

Hoffman,  in  his  Course  of  Legal  Study,  vol.  2,  p.  465,  2d 
ed.,  speaking  of  this  case,  says,  "  This  case  is  a  very  remark- 
able one,  being  in  truth  a  learned  and  elaborate  essay  on  ad- 
miralty jurisdiction,  and  one  of  the  most  elementary  and  lumi- 
nous vicw^s  of  the  subject  extant.  This  great  opinion  ought  to 
be  thorouglily  studied  by  those  w^ho  aim  at  solid  attainments  in 
this  department  of  the  law." 

See  also  Corfield  vs.  Coryell,  4  Wash.  371. 

The  act  of  congress,  giving  to  the  district  courts  cognizance 
of  all  civil  cases  of  admiralty  and  maritime  jurisdiction,  com- 
prehends all  maritime  contracts  ;  contracts  relating  to  the  na- 
vigation, business,  or  commerce  of  the  sea ;  and  contracts  for 
maritime  service,  in  the  building,  repairing,  supplying  and 
navigating  ships.  Davis  vs.  A  new  brig,  Gilpin  471,  477 ; 
quoting  De  Lovio  vs.  Boit,  2  Gall.  475,  and  The  Jerusalem,  2 
G  all.  347.  But  sec  contra.  Bains  vs.  ScAr  James  and  Catherine, 
Bald.  544,  568. 

The  same  strictness  does  not  apply  to  maritime  contracts,  as 
prevails  at  common  law.     Ellison  vs.  Ship  Bellona,  Bee  106. 

The  terms,  "  usages  and  principles  of  law,"  "  courts  of  law 
and  equity"  and  "  admiralty,"  as  used  in  the  acts  of  congress, 
refer  to  the  common  law,  and  not  to  the  civil  law.  Bains  vs. 
Schr.  James  and  Catharine,  Baldwin  544,  557,  563. 

The  admiralty  courts  of  the  United  States  may  proceed 
under  their  general  powers,  in  every  case  in  which  they  are 


DISTRICT  COURTS.  195 


gable  from  the  sea  by  vessels  often  or  more  tons    ^^'^^^ 
burthen,  within  their  respective  districts,  as  well 
as  upon  the  high  seas;  saving  to  suitors,  in  all 
cases,  the  right  of  a  common  law  remedy,  where 
the  common  law  is  competent  to  give  it;   and 
shall  also  have  exclusive  original  cognizance  of  all  oulaLY*^' 
seizures  on  land,  or  other  waters  than  as  aforesaid,  suits*' for 
made,  and  of  all  suits  for  penalties  and  forfeitures  J^^°*  "*""' 
incurred,  under  the  laws  of  the  United  States. 

not  restrained  from  the  exercise  of  those  powers  by  statute. 
United  States  vs.  Schr.  Little  Charles,  1  Mar.  Dec.  380. 

In  general,  set-offs  are  not  admissible  in  admiralty.  The 
Mentor,  4  Mason  84. 

The  forfeiture  of  a  vessel,  under  the  acts  of  congress  against 
the  slave  trade,  is  a  case  of  admiralty  and  maritime  jurisdic- 
tion, and  not  of  common  law.      United  States  vs.  The  Sally, 

2  Cra.  405 ;   1  Cond.  432.     See  also,  Ibid.  vs.  La  Vengeance, 

3  Dall.  297  ;   1  Cond.  132. 

All  seizures,  under  laws  of  impost,  navigation  and  trade  of 
the  United  States,  where  the  seizures  are  made  in  water  navi- 
gable from  the  sea,  by  vessels  of  ten  or  more  tons  burthen, 
are  ci^^l  causes  of  admiralty  and  maritime  jurisdiction,  and  are 
triable  without  a  jury.  United  States  vs.  The  Betsey,  4  Cra. 
443;  2  Cond.  168.  WJiclan  vs.  United  States,  7  Cra.  112; 
2  Cond.  437. 

The  clause  "  saving  and  reserving  to  suitors  in  all  cases  a 
common  law  remedy  where  the  common  law  is  competent  to 
give  it"  means,  that  in  cases  of  concurrent  jurisdiction  in  ad- 
miralty and  common  law,  the  jurisdiction  in  the  latter  is  not 
taken  away.  The  plaintiff  may  sue  either  in  the  admiralty  or  at 
common  law,  but  the  defendant  cannot  after  suit  brought,  force 
the  plaintiff  into  a  common  law  court.  Waring  vs.  Clark,  5 
How.  441,  4G0-1. 


1*96  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT^789.    j^j-^j  shall  also  have  cognizance,  concurrent  with 
Of  causes  iJiq  courts  of  tJic  scvcral  states,  or  the  circuit  courts, 

where 

alien  sues    gg  tlio  casc  mav  bc,  of  all  causes  where  an  alien 

for  a  tort.  "^  ,  r     ^        ^  j? 

sues  for  a  tort  only  in  violation  of  the  law  of  na- 
tions, or  a  treaty  of  the  United  States.    And  shall 
^r    -.  u    also  liave  cognizance,  concurrent  as  last  mentioned, 

()i  suits  by  <-> 

United       Q^  ^1^  g^^^g  ^i  common  law  where  the  United 

states ; 

States  sue,  and  the  matter  in  dispute  amounts, 
exclusive  of  costs,  to  the  sum  or  value  of  one 
hundred  dollars.  And  shall  also  have  jurisdiction, 
and  of  exclusively  of  the  courts  of  the  several  states,  of  all 
against  sults  agslust  cousuls,  or  vlcc-consuls,  except  for 
offences  above  the  description  aforesaid.  Act^ 
1789,  ch,  20,  §  9. 


TO   APPOINT   COMMISSIONERS  BEFORE  WHOM  APPRAISERS 
OF    VESSELS    MAY    BE    SWORN. 

ACT.  1794.        The  district  judges  of  the  United  States  shall 
To  anoint  be  authorized  to  appoint  a  commissioner  or  com- 
JJou^^rto  missioners,  before  whom  appraisers  of  ships  and 
^!:!»;l?rf''"  vessels,  or  goods,  wares  and  merchandise,  seized 
anrother  ^^^  brcachcs  of  any  law  of  the  United  States, 
property,    j^^y.  |^g  swom  or  affirmed ;  and  such  qualifica- 
tions made  before  such  commissioner  or  commis- 
sioners, shall  be,  to  all  intents  and  purposes,  as 
effectual  as  if  the  same  were  taken  before  the 
said  judges  in  open  court.     Act^  1794,  ch.  64,  §  1. 


DISTRICT  COURTS.  197 


IN    CASES    OF    PETITION    FOR    REMISSION    OF    FINES 
AND    FORFKITURES. 

Whenever  any  person  or  persons,  (1)  who  shall    act.uw 
have  incurred  any  line,  penalty,  Ibrfciture,  or  dis-  in  cages  ot 

,  .,.  ,  ,  .  ,     .  petitions 

ability,  (a)  or  shall  have  been  interested  in  any  i<>r  remij- 
vessel,  goods,  wares,  or  merchandise,  which  shall  ianes,  &c. 

(a)  Such,  for  example,  as  the  incapacity  to  hold  any  office 
under  the  United  States  for  the  period  of  seven  years,  inflicted 
by  the  50th  section  of  the  collection  act  of  1799  (vol,  3,  p.  136), 
for  a  violation  of  its  provisions. 


(1)  The  petition  for  remission  is  generally  verified  by  the 
oath  of  the  claimant  {Dun.  Aclm.  284  ;  Conk.  Prac.  487) ;  and 
is  exhibited  to  the  collector  and  district  attorney,  and  verbal 
notice  given  to  the  marshal  of  the  time  and  place  of  the  hear- 
ing [Ibid.  285) ;  or  a  notice  given  to  the  attorney,  collector  and 
naval  officer  when  necessary  [Conk.  Prac.  488,  490). 

Some  secretaries  of  the  treasury  have  refused  to  act  upon 
such  petitions,  until  after  a  judgment  at  law,  or  an  admission 
that  the  forfeiture  had  been  incurred. 

The  judge  of  the  district  court  of  Massachusetts  declines  to 
act  upon  a  petition  for  a  remission,  unless  all  proceedings  at 
law  have  been  determined,  or  the  forfeiture  is  admitted  in  the 
petition  to  have  been  incurred.     Dun.  Adm.  287. 

See  also  Dun.  Adm.  281  -  288,  2d  ed.  Cmk.  Prac.  ed.  1842. 
484  -  494. 

Under  the  act  of  1797,  the  district  judge  is  bound,  upon  a 
petition  for  remission,  to  state  the  facts,  and  not  merely  the 
cndence  of  the  facts  ;  and  the  secretary  is  bound  by  this  state- 
ment of  facts,  and  can  not  legally  act  upon  other  evidence. 
The  district  judge,  in  slating  such  facts,  acts  judicially  ;  and 
the  proof  before  him  must  be  made  by  competent,  as  well  as 
by  credible  testimony.  A  statement  by  the  district  judge,  that 
the  claimant  only  swore  to  the  facts  before  him,  is  no  legal 


198  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^797.  j^ave  been  subject  to  any  seizure,  forfeiture  or 
disability,  by  force  of  any  present  or  future  law- 
proof  upon  whicli  the  secretary  is  authorised  to  remit.  The 
Margoretta,  2  Gall.  515. 

The  secretary  of  the  treasury  has  authority  to  remit  a  for- 
feiture or  penalty  accruing  under  the  revenue  laws,  at  any  time 
before  or  after  a  final  sentence  of  condemnation  or  judgment 
for  the  penalty,  wntil  tlic  money  is  actually  paid  over  to  tJie  col- 
lector for  distribution.  United  States  vs.  Morris,  10  Wliea.  246; 
6  Cond.  90.     United  States  vs.  Lancaster,  4  Wash.  64. 

Whether,  after  payment,  the  secretary  may  remit  the  share 
belonging  to  the  United  States — query?  Conic.  Prac.  ed.  1842, 
486. 

Petitions  in  such  cases  have  been  presented  to  the  district 
judge  of  Massachusetts  ;  but  the  proceedings  have  not  been 
60  far  maintained  as  to  be  transmitted  to  the  secretary  of  the 
treasury.     Dun.  Adm.  Prac.  2d  ed.  284. 

But  he  can  not  remit  penalties,  unless  in  cases  provided  for 
by  law.  If  he  recites  his  authority  under  a  special  act,  and 
remits  in  pursuance  of  that  act,  the  remission,  if  unsupported 
by  that  act,  can  not  be  supported  under  the  general  act  of 
1797.     The  Margarctta,  2  Gall.  515. 

After  Jlnal  judgment,  the  share  belonging  to  the  collector 
vests  absolutely,  and  can  not  be  remitted.  The  Margaretta, 
2  Gall.  505.  The  Hollcn  and  cargo,  1  Mason,  431.  United 
States  vs.  Lancaster,  4  Wash.  64. 

The  contrary  has,  however,  been  held  by  the  supreme  court 
in  United  States  vs.  Morris,  10  Whea.  246 ;  6  Cond.  90,  and 
in  McLane  vs.  United  States,  6  Peters  404  ;  in  which  cases  it 
was  considered  that  the  right  of  the  collector  was  subject  to  the 
right  of  the  government  to  release. 

But  whatever  is  reserved  to  the  government  oixt  of  the  for- 
feiture, is  reserved  as  well  for  the  seizing  officer  as  for  itself^ 
and  is  distributable  accordingly.  The  government  has  no  au- 
thority to  release  the  collector's  share  as  such,  and  yet  retain 


DISTRICT  COURTS.  199 


of  the  United  States,  for  the  laying,  levying,  or    A^r^^-j; 
collecting  any  duties  or  taxes,  or  by  force  of  any 
present  or  future  act,  concerning  the  registering 
and  recording  of  ships  or  vessels,  or  any  act  con- 
cerning the  enrolling  and  licensing  ships  or  ves- 
sels employed  in  the  coasting  trade  or  fisheries, 
and  for  regulating  the  same,  shall  prefer  his  peti- 
tion to  the  judge  of  the  district,  in  which  such  ^vhat  pe- 
fine,  penalty,  forfeiture  or  disability  shall  have  ilJ^^el  ^° 
accrued,  truly  and  particularly  setting  forth  the 
circumstances  of  his  case ;  and  shall  pray  that 
the  same  may  be  mitigated  or  remitted,  the  said   Power  of 
judge  shall  enquire  m  a  summary  manner  into  the  same. 
the  circumstances  of  the  case ;  first  causing  rea- 
sonable notice  to  be  given  to  the  person  or  persons 
claiming  such  fine,  penalty  or  forfeiture,  and  to 
the  attorney  of  the  United  States  for  such  dis- 
trict, that  each  may  have  an  opportunity  of  show- 
ing cause  against  the    mitigation   or   remission 
thereof;   and  shall  cause  the  facts  v/hich  shall 
appear  upon  such  enquiry,  to  be  stated  and  an- 
nexed to  the  petition,  and  direct  their  transmis- 

to  itself  iho  other  part  of  the  forfeiture.  McLane  vs.  United 
States,  G  Pet.  404.     The  Margaretta,  2  Gall.  515. 

Courts,  in  considering  the  question  of  forfeiture,  disregard  a 
refusal  of  the  secretary  of  the  treasury  to  remit  a  penally.  Ship 
Cotton  Planter,  4  Paine,  23. 

It  is  doubtful  whether  fines  for  offences  can  be  remitted  under 
this  act,  as  the  President  has  the  power  to  grant  reprieves  and 
pardons  for  offences.  Ex  parte  Marquand,  2  Gall.  555.  United 
States  vs.  Mann,  1  Gall.  177,  186. 


200  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^797.   gjQjj  ^Q  ^Yie  secretary  of  the  treasury  of  the  Uni- 
To  send     fed  States,  who  shall,  thereupon,  have  power  to 

facts  to  the 

secretary    niitifiTate  or  remit  such  fine,  forfeiture  or  penalty, 

ofthotrea-  ^  ...  . 

Bury,  who  or  rcmove  such  disability,  or  any  part  thereof,  if, 

may  remit.  . 

in  his  opinion,  the  same  shall  have  been  incurred 
without  wilful  negligence,  or  any  intention  of 
fraud,  in  the  person  or  persons  incurring  the  same; 
and  to  direct  the  prosecution,  if  any  shall  have 
been  instituted  for  the  recovery  thereof,  to  cease 
and  be  discontinued,  upon  such  terms  or  condi- 
tions as  he  may  deem  reasonable  and  just.  Act, 
1797,  sess.  2,  cli.  13,  §  1,  made  perpetual  by  Act, 
1800,  ch.  6. 
State  courts  have  the  same  power. 


OVER    ASSIGNED    DEBENTURES 
ACT,  1799, 


_L   '       Act,  1799,  ch.  22,  §  80.     Same  powers  as  a  cir- 
j^jg.  cuit  court.     See  "  Circuit  Courts,"  page  152, 


Over  as- 

•igne 

benturea 


CASES    OF    INJUNCTIONS. 

ACTV1807.       xhe  judges  of  the  district  courts  of  the  United 
To  grant     Statcs,  shall  havc  as  full  power  to  grant  writs  of 

injun'tions 

in  cases     injunctiou  to  opcratc  within  their  respective  dis- 

■where  •  n  i  •    i 

judges  of  tricts,  in  all  cases  which  may  come  before  the 

thesup'mo       ,         .  .  ,  .        ,      .  .  , 

court  can.  circuit  courts  withm  their  respective  districts,  as 
is  now  exercised  by  any  of  the  judges  of  the  su- 
preme court  of  the  United  States,  under  the  same 
rules,  regulations  and  restrictions,  as  are  prescrib- 
ed by  the  several  acts  of  congress,  establishing 


DISTRICT  COURTS.  201 


the  judiciary  of  the  United  States,  any  law  to   act^«"- 
the  contrary  notwithstanding;  Piwickd,  that  the  ""w  long 
same  shall  not,  unless  so  ordered  by  the  circuit  tiuue. 
court,  continue  longer  than  to  the  circuit  court 
next  ensuing,  nor  shall  an  injunction  be  issued  not^bJ^' 
by  a  district  judge,  in  any  case  where  a  party  has  ^^'^'^^^  ' 
had  a  reasonable  time  to   apply  to  the  circuit 
court  for  the  writ.     Act,  1807,  ch.  13. 

As  to  notice  required  on  the  issuing  of  injunc-  ^°'^^^^  °"- 
tions  generally,  see  Act,  1793,  ch.  22,  §  5,  quoted 
in  "  Powers  in  Common,"  p.  35 ;    and  see  also 
reference  following  the  same. 

As  to  injunctions  in  "  Cases  of  Distress  War-  Canicular 

"  cases. 

rants,"  see  that  title,  postea. 

As  to  injunctions  in  cases  of  California  land 
claims,  see  postea. 

PRIZE    CASES. 

In  the  case  of  all  captured  vessels,(l)  goods  and   act^siz. 
effects,  which  shall  be  brought  within  the  juris-  Jurisdic 


(1)  There  is  some  doubt  and  uncertainty  as  to  Avhether  this 
section,  and  the  act  of  1812,  is  still  in  force,  or  is  obsolete. 

This  act  was  in  fact  supplemental  or  additional  to  the  act 
of  1812,  ch.  102,  passed  June  18,  dcclai-ing  war  between  the 
United  States  and  England,  and  authorizing  the  president  to 
employ  the  land  and  naval  forces  in  its  prosecution,  and  also 
authorizing  him  to  issue  letters  of  marque  and  reprisal.  Chap. 
107,  specifies  the  conditions  upon  which  letters  of  marque  and 
reprisal  could  be  granted,  and  the  duties  and  liabilities  of  those 
receiving  them.  Both  acts,  therefore,  with  an  additional  act, 
(Act  1813,  ch.  13,)  have  been,  by  some,  deemed  obsolete,  as 


tion  m 
cases  of 
prize. 


202  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV1S12.   diction  of  the  United  States,  the  district  courts 
of  the  United  States  shall  have  exclusive  original 

being  limited  in  their  effect  to  the  war  of  1812.  In  the  statutes 
at  large,  both  acts  of  1812  are  marked  as  "obsolete;"  and  in 
Gordon's  Digest,  and  in  Conklin's  and  Dunlap's  treatises  on 
Admiralty  Practice,  no  allusion  is  made  to  them,  as  being  still 
in  force.  Benedict,  however,  in  his  late  work  on  Admiralty 
Jurisdiction  and  Practice,  (page  281,)  cites  the  above  sixth  sec- 
tion as  still  in  force ;  and  Mr.  Chancellor  Kent,  in  his  Commen- 
taries, (vol.  1,  6th  ed.,  page  355,  note,)  also  refers  to  the  act  as 
still  binding. 

So  far,  however,  as  the  question  of  jurisdiction  of  the  dis- 
trict courts  in  cases  of  prize  is  concerned,  it  is  held  that  such 
courts  have  an  inherent  jurisdiction  in  such  cases,  and  there- 
fore it  is  a  matter  of  but  little  importance,  whether  the  act  of 
1812  is  still  in  force,  or  expired  when  the  motive  which  dic- 
tated its  enactment — the  war  of  1812 — terminated.  The  fol- 
lowino"  are  some  of  the  decisions  on  this  point. 

Every  district  court  possesses  all  the  powers  of  a  court  of 
admiralty,  whether  considered  as  an  instance  or  a  prize  court. 
Glass  vs.  Sloop  Betsey,  3  Dall.  6 ;  1  Cond.  10. 

Questions  of  prize  are  exclusively  of  admiralty  jurisdiction. 
Bingham  vs.  Cahot,  3  Dall.  19;   1  Cond.  13. 

See  also  The  Amiahle  Nancy,  3  Whea.  546 ;  4  Cond.  322. 
Penhallow  vs.  Doan's  ExWs,  3  Dall.  54 ;  1  Cond.  21.  The 
Emulous,  1  Gall.  563,  575. 

And  in  cases  of  capture  without  just  cause,  the  court  may 
decree  restitution  in  whole  or  in  part.  Jennings  vs.  Carson,  4 
Cra.  2  ;  2  Cond.  2.  L'Amistad  de  Rues,  5  Whea.  385  ;  4  Cond. 
697. 

And  may  carry  into  effect  the  sentences  of  the  old  continen- 
tal courts  of  appeal  in  prize  cases.     Ihid. 

Eut  they  have  not  jurisdiction  on  a  libel  for  damages,  for  the 
capture  of  a  vessel  as  prize  by  the  commissioned  cruizer  of  a 
belligerent  power,  although  the  captured  vessel   belongsd  to 


DISTRICT  COURTS.  203 


cojrnizance  thereof,  as  in  civil  causes  of  admiralty  Acivisia. 
and  maritime  jurisdiction ;  and  the  said  courts, 
or  the  courts  being  courts  of  the  United  States, 
into  which  such  causes  shall  be  removed,  and  in 
which  they  shall  be  finally  decided,  shall  and 
may  decree  restitution,  in  whole  or  in  part,  when 
the  capture  shall  have  been  made  without  just 
cause.  And  if  made  without  probable  cause,  or 
otherwise  unreasonably,  may  order  and  decree 
damages  and  costs  to  the  party  injured,  and  for 
whicli  the  owners  and  commanders  of  the  ves- 
sels makin^!^  such  captures,  and  also  the  vessels, 
shall  be  liable.     Act,  1812,  ch.  107,  §  6. 

citizens  of  the  United  States,  and  the  capturing  vessel  and  her 
commander  be  found  and  proceeded  against  within  the  juris- 
diction of  the  court,  the  captured  vessel  being  carried  infra 
prasidia  of  the  captors.  United  States  vs.  Peters,  5  Cra.  115  ; 
2  Cond.  202.     The  Cassius,  3  Dall.  121. 

They  have  jurisdiction  over  captures  made  by  foreign  vessels 
of  war,  of  the  property  of  our  citizens,  of  other  nations  with 
whom  we  are  at  peace,  where  such  vessels  act  under  a  com- 
mission issued  wilhin  the  United  States,  or  are  equipped,  or 
their  force  augmented  in  this  country  in  violation  of  its  laws 
and  neutrality ;  and  this,  whether  such  capturing  vessel  be  a 
public  ship  of  war,  or  a  privateer.  Talbot  vs.  Janscn,  3  Dall. 
133  ;  1  Cond.  62.  Moody  vs.  The  Betsey,  3  Dall.  288,  n.  Brig  ' 
Alerta,  9  Cra.  159  ;  2  Cond.  425.  The  Estrclla,  4  Whea.  298  ; 
4  Cond.  459.  Santissi?na  Trinidad,  7  Whea.  283  ;  5  Cond.  284. 

See  also  Kent  Com.  355.     Benedict's  Adm    281.     Dunlap's 
Adm.  61,  67.     Ser.  Cons.  Law,  197. 


204 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


CASES    OF    CAPTURES. 


ACT,  181?. 

Oa  com- 
plaints ia 
cases  of 
captures. 


The  district  courts  shall  take  cognizance  of 
complaints  by  whonisover  instituted,  in  cases  of 
captures  made  within  the  waters  of  the  United 
States,  or  within  a  marine  league  of  the  coasts 
or  shores  thereof     Act^  1818,  ch.  88,  §  7. 


ACT,  1815. 

Where   U. 
S.   or  its 
officers 
sue. 


IN    CASES    WHERE    UNITED    STATES    SUE,    OR    ITS 
OFFICERS    SUE. 

The  district  courts  of  the  United  States  shall 
have  cognizance,  concurrent  with  the  courts  and 
magistrates  of  the  several  states,  and  the  circuit 
courts  of  the  United  States,  of  all  suits  at  common 
law,  where  the  United  States,  or  any  officer  there- 
of, under  the  authority  of  any  act  of  congress, 
shall  sue,  although  the  debt,  claim  or  other  mat- 
ter in  dispute,  shall  not  amount  to  one  hundred 
dollars.     Act,  ]8l 5,  ch.  101,  §  5. 

See  "  Circuit  Courts,"  ante,  page  155,  and  the 
above  act  there  quoted,  and  the  notes  to  same. 


IN    CASES    OF    DISTRESS    WARRANTS. 

ACT.  1820.  The  act  of  1820,  which  authorises  the  issuing 
la  cases  of  of  dlstrcss  warrauts  against  delinquent  disburs- 
warraSs.    ing  officcrs  of  the  government,  for  the  amounts 

with  which  such  delinquents  are  chargeable,  also 

provides : 


DISTRICT  COURTS.  205 


Bond  ou. 


That  if  any  person  (1)  should  consider  himself  Acx^isao. 
aff<]rrieved  by  any  warrant  issued  under  this  act,  ii-junciiou 
he  may  prefer  a  bill  of  complaint  to  any  district  granted. 
judge  of  the  United  States,  setting  forth  therein 
the  nature  and  extent  of  the  injury  of  which  he 
complains;  and  thereupon  the  judge  aforesaid 
may,  if  in  his  opinion  the  case  requires  it,  grant 
an  injunction  to  stay  proceedings  on  such  Avar- 
rant  altogether,  or  for  so  much  thereof  as  the 
nature  of  the  case  requires ;  but  no  injunction 
shall  issue  till  the  party  applying  for  the  same 
shall  give  bond  and  sufficient  security,  condi- 
tioned for  the  performance  of  such  judgment  as 
shall  be  awarded  against  the  complainant,  in  such 
amount  as  the  judge  granting  the  injunction  shall 
prescribe;  nor  shall  the  issuing  of  such  injunc- 

(1)  Where  a  warrant  of  distress  has  been  issued  under  the 
act  of  1820,  any  person  feeling  himself  aggrieved,  whether  an 
officer  or  not  an  officer,  a  debtor  or  not  a  debtor,  may,  if  the 
warrant  has  been  levied  on  his  person  or  property,  bring  his 
case  by  appeal  before  a  district  judge,  and  have  a  final  adjudi- 
cation by  him.      United  States  vs.  Nourse,  9  Peters,  8. 

The  validity  of  the  act  of  1820,  which  authorises  the  agent 
of  the  treasury  to  issue  a  distress  warrant  against  a  defaulting 
officer  and  his  sureties,  may  well  be  doubted.  This  procedure 
deprives  the  citizen  of  the  right  of  a  trial  by  jury.  It  is  a  most 
liarsh  and  unnecessary  proceeding;  and  must  always  be  inju- 
rious, if  not  ruinous,  to  the  parties  against  whom  it  is  instituted. 
United  States  vs.  Taylor  and  sureties,  3  McLean,  539,  541. 

No  appeal  lies  in  behalf  of  the  United  States  from  the  deci- 
sion of  the  district  judge,  granting  an  injunction  under  this  act. 
United  States  vs.  Nourse,  6  Pet.  470. 


206  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV920.   iJQj^  jj^  jjj^y  jjiannei'  impair  the  lien  produced  by 
Effect  of     the  issuin<]i:  of  such  warrant. 

injunction.  " 

Such  injunctions  may  be  granted  or  dissolved 

Granted  t  t  •  i  • 

in  or  out  oy  such  judge,  either  m  or  out  of  court.     Acty 

of  court. 

1820,  ch.  107,  §§4,  5. 

Appeals  lie  from  the  decisions  of  such  judges 
under  this  act,  to  the  circuit  courts. 

See  "Circuit  Courts/'  "Appellate  Jurisdiction." 


IN    CASES    OF    PIRACY. 

ACTV1S23.        The  district  courts  of  the   United  States,  in 
Incases  f  dlstrlcts  where  no  circuit  courts  are  holden,  shall 

piracy.  .    . 

have  cognizance  of  all  cases  arismg  under  an  act 
of  Congress,  approved  May  15,  1820,  (for  punish- 
ing the  crime  of  piracy,)  and  shall  have  the  same 
power  and  jurisdiction  therein,  as  the  circuit 
courts  of  the  United  States  under  the  same  acts. 
Act,  1823,  ch,  72. 

See  further  "  Circuit  Courts,"  title  "  Piracy," 
page  159,  where  the  act  of  1820  is  given;  and 
see  notes  thereto. 


UNDER    THE    SLAVE    TRADE    ACTS. 

Underacts       Same  powcrs  as  circuit  courts.     See  "  Circuit 
S'e*^tradS  Courts,"  page  160,  and  notes  thereto. 

ACT.  1830.  OBSTRUCTION    OF    GOVERNMENT    SURVEYORS. 

tiJnorgo        Act,  1830,  ch.  163,  §  1.     Same  powers  as  a  cir- 


vernment 
sarveyora. 


cuit  court.     Sec  "  Circuit  Courts,"  page  164. 


DISTRICT  COURTS.  207 


OVER    CAUSES    ARISING    UNDER    INDIAN    ACTS. 

Act,  1834,  c//.  161,  §§  25,  27.     Same  powers  as   Acxjasi. 
a  circuit  court.     See  "  Circuit  Courts,"  page  167.  under  the 

Iiidian 


OVER    CAUSES    ARISING    UNDER    ACTS    RELATIVE 
TO   STEAMBOATS. 


ACT,  1838. 


Act,  1838,  cA.  191,  §§  11,  12.     Same  powers  as   ''''!ll 
a  circuit  court.     See  "  Circuit  Courts,"  page  168.  ""*^" 


steamboat 
acts. 


CRIMINAL   JURISDICTION. 

ACT,  1842. 

The  district  courts  of  the  United  States  shall  j^  ~j,i. 
have  concurrent  jurisdiction  with  the  circuit  courts,  "^  ^**®'" 
of  all  crimes  and   oifences  against  the  United 
States,  the  punishment  of  which  is  not  capital. 
And  in  such  of  the  districts  where  the  business 
of  the  court  may  require  it  to  be  done  for  the 
purposes  of  justice,  and  to  prevent  undue  expen- 
ses and  delays  in  the  trial  of  criminal  causes,  the  feSns 
said  district  courts  shall  hold  monthly  adjourn-  ^°'"'"^^°'- 
ments  of  the  regular  terms  thereof,  for  the  trial 
and  hearing  of  such  causes.     Act,  1842,  ch.  188, 
§3. 

aUASI    ADMIRALTY   JURISDICTION. 

The  district  courts  (1)  of  the  United  States   act,  i845. 

shall  have,  possess  and  exercise,  the  same  juris-  Quasi  ad- 
mi  raityj  a 

■ —    risdiciion. 

(1)  The  cases  designated  in  this  act  are,  in  their  nature,  of 
common  law  jurisdiction.  ****     The  object  of  tlic  act  appears 


208  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT^sio.    (^[(.(JQj^  jjj  matters  of  contracts  and  tort,  arising 
kkes  and    ^^'  upoH,  or  conccming  steamboats  and  other 

to  be,  first,  to  bring  these  cases  within  the  cognizance  of  the 
district  courts,  without  regard  to  the  citizenship  of  the  parties, 
as  cases  arising  under  a  law  of  the  United  States  (that  is  to  say, 
under  the  act  itself) ;  and,  secondly,  as  far  as  it  could  con- 
stitutionally be  done,  to  apply  to  them  the  same  rules,  both  of 
procedure  and  of  decision,  as  if  they  had  pertained  to  ocean 
instead  of  inland  navigation,  and  so  been  strictly  of  admiralty 
jurisdiction  ;  or,  in  other  words,  to  subject  them  to  the  operation 
of  the  maritime  law  of  the  United  States.  This  new  jurisdic- 
tion can,  however,  be  exercised  only  at  the  option  of  the  party 
seeking  redress ;  because  the  act  contains  an  express  saving 
"  to  the  parties"  of  "  the  right  of  a  concurrent  remedy  at  the 
common  law,  where  it  is  competent  to  give  it,  and  any  concur- 
rent remedy  which  may  be  given  by  the  state  laws."  In  obe- 
dience to  the  seventh  amendment  of  the  Constitution,  the  act 
also  contains  a  saving,  even  in  suits  commenced  by  the  admiralty 
form  of  process,  of  "  the  right  of  trial  by  jury,  of  all  facts  put 
in  issue  in  such  suits,  where  either  party  shall  require  it ;  "  so 
that  in  no  case  can  the  civil  law  mode  of  trial  be  followed, 
without  the  assent  of  both  parties.     Conk.  Adm.  Prac.  5,  6. 

In  cases  under  this  act,  in  the  northern  district  of  New- York, 
the  objections  to  trial  by  jury  have  seemed  of  so  grave  and 
embarrassing  a  character,  that  the  right  to  such  trial  has  never 
been  exercised,  but  the  cases  have  been  tried  according  to  the 
usual  practice  in  admiralty.     Ibid.  7. 

The  only  objection  to  this  necessary  law  seems  to  be,  that 
Congress,  in  passing  it,  was  shivering  and  trembling  under  the 
apprehension  of  what  might  be  the  ultimate  consequence  of  the 
decision  of  the  supreme  court  in  the  case  of  the  Tho?nas 
Jefferson  (10  Whea.  428;  6  Cond.  173).  It  pitched  the  power 
upon  a  wrong  location.  Its  proper  home  was  in  the  admiralty 
and  maritime  grant,  as,  in  all  reason,  and  in  the  common  sense 
of  all  mankind  out  of  England,  admiralty  and  maritime  juris- 


DISTRICT  COURTS.  209 


vessels  of  twenty  tons  burthen  and  upwards,  en-    *^^84& 
rolled  and  licensed  for  the  coastinj?  trade,  and  at  watem 

^  connecl'Dg 

the  time  employed  in  business  of  commerce  and  ^^*^  same 
navigation  between  ports  and  places  in  different 
states  and  territories  upon  the  lakes  and  naviga- 
ble waters  connecting  said  lakes,  as  is  now  pos- 
sessed and  exercised  by  the  said  courts  in  cases 
of  the  like  steamboats  and  other  vessels  employed 
in  navigation  and  commerce  upon  the  high  seas 
or  tide  waters,  within  the  admiralty  and  maritime 
jurisdiction  of  the  United  States;  and  in  all  suits 
brought  in  such  courts  in  all  such  matters  of  rrocess 
contract  or  tort,  the  remedies  and  the  forms  of  of  prTeed' 
process,  and  the  modes  of  proceeding,  shall  be  casJl!'"*' 
the  same  as  are  or  may  be  used  by  such  courts 
in  cases  of  admiralty  and  maritime  jurisdiction ; 
and  the  maritime  law  of  the  United  States,  so  far  Maritime 
as  the  same  is  or  may  be  applicable  thereto,  appiic'bie. 


diction  ought  to  extend,  and  does  extend  to  all  navigable  wa- 
ters, fresh  or  salt,  Webster,  arguendo  in  the  case  of  The  New- 
Jersey  Steam  Navigation  Company  vs.  The  Merchants'  Bank, 
6  How.  344,  378. 

This  act  docs  not  embrace  the  great  navigable  rivers  which 
do  not  connect  the  lakes,  such  as  the  Mississippi.  Benedict's 
Adm.  142,  §  252. 

And  it  is  limited  to  matters  pertaining  to  navigation  and 
commerce  carried  on  between  ports  and  places  in  different 
stales  and  territories.  It  does  not  therefore  embrace  cases 
arising  out  of  the  commercial  intercourse  between  American 
ports  and  the  neighboring  British  dominions  ;  unless,  by  pos- 
sibility, these  dominions  should  be  adjudged  to  have  been  in- 
tended by  the  terra  territories.  Conk.  Adm.  7. 
14 


210 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV1S45.  shall  constitute  the  rule  of  decision  in  such  cases, 
in  the  same  manner,  and  to  the  same  extent, 
and  with  the  same  equities,  as  it  now  does  in 
cases  of  admiralty  and  maritime  jurisdiction : 
saving,  however,  to  the  parties  the  right  of  trial 
by  jury  of  all  facts  put  in  issue  in  such  suits, 
where  eitlier  party  shall  require  it ;  and  saving 
laTreme-  also  to  the  parties  the  right  of  a  concurrent  reme- 
to^  suitors,  dy  at  the  common  law,  where  it  is  competent  to 
give  it,  and  any  concurrent  remedy  which  may 
be  given  by  the  state  laws,  where  such  steamer 
or  other  vessel  is  employed  in  such  business  of 
commerce  and  navigation.     Act,  1845,  ch.  20. 

UNDER    POST-OFFICE    ACTS. 

Under  Act,  1845,  ch,  43,  §  20.     Same  powers  as  a  cir- 

acts°  ""^    cuit  court.     See  "Circuit  Courts,*'  page  170. 


ON  APPLICATION  OF  FOREIGN  CONSULS  TO  CARRY 
OUT  TREATY  STIPULATIONS. 

ACT^sie.       jif.(^  1846,  ch.  105.     Same  powers  as  a  circuit 
Appiica-     court.     See  "Circuit  Courts,"  page  172. 

tions  of 
foreign 
cousuls. 

IN  CASES  OF  CONFLICTING  CLAIMS  OF  LANDS  IN  CALI- 
FORNIA, ADJUDICATED  UPON  BY  THE  BOARD  OF 
COMMISSIONERS. 


ACT.  185L 

In  cases  of 
Califoruia 
land 
claims. 


In  all  cases  of  the  rejection  or  confirmation  of 
any  claim  by  the  board  of  commissioners,  it  shall 
and  may  be  lawful  for  the  claimant  or  district 


DISTRICT  COURTS.  2 1 1 


attorney,  in  behalf  of  the  United  States,  to  pre-    actjssi. 
sent  a  petition  to  the  district  court  of  the  district  I'etition, 

what  to 

in  which  the  land  claimed  is  situated,  prayinsr  contain 

.        and  set 

the  said  court  to  review  the  decision  of  the  said  f"r»i'.  if 

presented 

commissioners,  and  to  decide  on  the  validity  of  by  daim- 

.  ...  1     ants. 

the  said  claim;  and  such  petition,   if  presented 
by  the  claimant,  shall  set  forth  fully  the  nature 
of  the  claim,  and  the  names  of  the  original  and 
present  claimants,  and  shall  contain  a  deraign- 
ment  of  the  claimant's  title,  together  with  a  tran- 
script of  the  report  of  the  board  of  commissioners, 
and  of  the  documentary  evidence  and  testimony 
of  the  witnesses  on  which  it  was  founded:  and 
such  petition,  if  presented  by  the  district  attorney  by  u.  s. 
in  behalf  of  the  United  States,  shall  be  accompa-  ney! 
nied  by  a  transcript  of  the  report  of  the  board  of 
commissioners,  and  of  the  papers  and  evidence 
on  which  it  was  founded,  and  shall  allege  and 
distinctly  set  forth  the  ground  on  which  the  said 
claim  is  alleged  to  be  invalid ;  a  copy  of  which  te^iFvVd; 
petition,  if  the   same   shall  be  presented  by  a  s^iir^'tobe 
claimant,  sliall  be  served  on  the  district  attorney  JJereto. 
of  the  United  States,  and  if  presented  in  behalf 
of  the  United  States  shall  be  served  on  the  claim- 
ant or  his  attorney ;  and  the  party  on  whom  such 
service  shall  be  made  shall  be  bound  to  answer 
the  same  within  a  time  to  be  prescribed  byiJhe 
judge  of  the  district  court;  and  the  answer  of  the  Answer  of 

1     •  ,  1  .    .  ,      ,  claimauts. 

claimant  to  such  petition  shall  set  forth  fully  the 
nature  of  the  claim,  and  the  names  of  the  origi- 


212  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTussi.   nal  and  present  claimants,  and  shall  contain  a 
Answer  of  derai<rnmcnt  of  the  claimant's  title;  and  the  an- 

dist.  att'y.  .        . 

swer  of  the  district   attorney  in  hehalf  of  the 

United  States  shall  fully  and  distinctly  set  forth 

the  grounds  on  which  the  said  claim  is  alleged  to 

Copies  of    he  invalid,  copies  of  which  answers  shall  be  served 

trs'IrJed.'  upon  the  adverse  party  thirty  days  before  the 

meeting  of  the  court:  and  thereupon,  at  the  first 

term  of  the  court  thereafter,  the  said  case  shall 

stand  for  trial,  unless,  on  cause  shown,  the  same 

shall  be  continued  by  the  court.     Act,  1851,  ch. 

41,  §9. 

jadgment       Aud  the  district  court  shall  proceed  to  render 

OB. 

judgment  upon  the  pleadings  and  evidence  in  the 
case,  and  upon  such  further  evidence  as  may 
be  taken  by  order  of  the  said  court,  and  shall, 
on  application  of  the  party  against  whom  judg- 
ment is  rendered,  grant  an  appeal  to  the  supreme 
court  of  the  United  States,  on  such  security  for 
costs  in  the  district  and  supreme  court,  in  case 
the  judgment  of  the  district  court  shall  be  affirm- 
ed, as  the  said  court  shall  prescribe ;  and  if  the 
court  shall  be  satisfied  that  the  party  desiring  to 
Appeal       appeal  is  unable  to  give  such  security,  the  appeal 
rityon.      may  bc  allowcd  without  sccurity.     lbid.\\0. 
Principles       Tlic  commissioncrs  and  the  supreme  and  dis- 
such  ^^     tri«t  courts,  in  deciding  of  the  validity  of  any 
deTe^mfn-^  claim  brought  before  them  under  the  provisions 
of  this  act,   shall  be  governed  by  the  treaty  of 
Guadaloupe  Hidalgo,  the  law  of  nations,  the  laws, 


DISTRICT  COURTS.  213 


usa<^es  and   customs  of  the   government  from   actj86i. 
which  the   claim  is  derived,   the  principles  of 
equity,  and  the  decisions  of  the  supreme  court  of 
the  United  States,  as  far  as  they  are  applicable. 
Ilml  §  11. 

If  the  title  of  the  claimant  of  such  lands  shall  J;;';^'^/ 
be  contested  by  any  other  person,  it  shall  and  ^^'}:^^^^l'^^, 
may  be  lawful  for  any  such  person  to  present  a  tested, 
petition  to  the  district  judge  of  the  United  States  ^.^J*J'°° 
for  the  district  in  which  the  lands  are  situated,  state. 
plainly  and  distinctly  setting  forth  his  title  thereto, 
and  praying  the  said  judge  to  hear  and  determine 
the  same,  a  copy  of  which  petition  shall  be  served 
upon  the  adverse  party,  thirty  days  before  the 
time  appointed  for  hearing  the  same.     And  it  ^°^y"^^^'°° 
shall  and  may  be  lawful  for  the  district  judge  of  granted. 
of  the  United  States,  upon  the  hearing  of  such 
petition,  to  grant  an  injunction  to  restrain  the 
party  at  whose  instance  the  claim  to  the  said 
lands  has  been  confirmed,  from  suing  out  a  patent 
for  the  same,  until  the  title  thereto  shall  have 
been  finally  decided,  a  copy  of  which  order  shall 
be  transmitted  to  the  General  Land  Office,  and  wiii  pr - 
thereupon  no  patent  shall  issue  until  such  deci-  issuVo*fa 
•sion  shall  be  made,  or  until  sufficient  time  shall,  ^''^''"'' 
in  the  opinion  of  the  said  judge,  have  been  al- 
lowed for  obtaining  the  same ;  and  thereafter  the 
said  injunction  shall  be  dissolved.     Act,  1851,  ch. 
41,  §  13. 


214  JURISDICTION  OF  THE  FEDERAL  COURTS. 


Circnit 

court  ju- 
risdiction. 


CIRCUIT    COURT    JURISDICTION. 

By  special  acts  of  congress  the  district  courts  (1) 
in  the  districts  of  Western  Tennessee,  Northern 
and  Middle  Alabama,  Northern  and  Southern 
Florida,  Northern  Georgia,  Texas,  Iowa,  Wiscon- 
sin, Western  Arkansas  and  California,  are  clothed 
with  the  powers  and  authority  of  circuit  courts, 
and  sit  both  as  circuit  and  district  courts. 


(1)  See  "  Supreme  Court,"  page  120,  for  references  to  the 
statutes  by  which  such  powers  are  conferred. 

A  district  court  of  the  United  States,  performing  the  appro- 
priate duty  of  a  district  court,  is  not  sitting  as  a  circuit  court, 
because  it  possesses  the  power  of  a  circuit  court  also.  South- 
toick  vs.  P.  M.  General,  2  Pet.  442. 


JURISDICTION 


FEDERAL   COURTS    OF    THE    UNITED    STATES. 


COURTS  OF   THE  DISTRICT  OF  COLUMBIA. 


JURISDICTION 


FEDERAL   COURTS. 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA. 


At  the  time  the  principal  acts,  (I)  in  relation  to  District  of 

^  ^  ^  Columbia, 

the  judicial  power  vested  in  the  courts  of  the  how  form. 

(1)  By  the  separation  of  the  District  of  Columbia  from  the 
State  of  Maryland,  the  residents  in  that  part  of  Maryland 
ceased  to  be  citizens  of  the  state.  Reilhj  vs.  Lamar,  2  Cra. 
344  ;   1  Cond.  419. 

A  citizen  of  the  District  of  Columbia  can  not  maintain  an 
action  in  the  circuit  court  of  the  United  States  out  of  the  dis- 
trict ;  he  not  being  a  citizen  of  a  state,  within  the  meaning  of 
the  provision  in  the  laws  of  the  United  States,  regulating  the 
jurisdiction  of  the  courts  of  the  United  States,  Hepburn  vs. 
EUzet/,  2  Cra.  415  ;  1  Cond.  444. 

The  change  of  sovereignty  produced  no  change  in  the  state 
of  rights  existing  in  the  soil.  Mutual  Assu.  Society  vs.  Watfs 
Ex'rs,  1  Wliea.  279  ;  3  Cond.  570. 

The  statute  of  27  Elizabeth,  in  relation  to  voluntary  con- 
veyances being  void  as  against  subsequent  purchasers,  is  in 
force  in  the  district.     Cathcart  vs.  Robinson,  5  Pet.  2G4,  279. 


218  JURISDICTION  OF  THE  FEDERAL  COURTS. 

United  States  for  the  District  of  Columbia,  were 
passed,  the  district  consisted  of  two  counties — 
one  the  county  of  Washington,  inchiding  all  that 
part  of  the  district  east  of  the  Potomac  river,  and 
which  had  been  ceded  by  the  state  of  Mary- 
land ;  and  the  other  the  county  of  Alexandria,  in- 
cluding- the  remaining  portion  of  the  district,  and 
which  had  been  ceded  by  the  state  of  Virginia. 
The  mention  of  this  fact,  will  serve  to  explain 
many  allusions  and  expressions,  which  may  be 
found  in  the  different  acts  referred  to,  or  quoted 
from. 

Since  the  retrocession  to  Virginia,  of  that  part 
of  the  district  originally  ceded  by  that  state,  the 
judicial  power  of  the  district  has  reference  of 
course  only  to  that  part  originally  ceded  from 
Maryland. 
Laws  The  laws  of  the  states  of  Maryland  and  Vir- 

auoptedin 

ginia,  as  they  existed  in  1801,  were  continued 
in  force  and  made  permanent,  over  the  territory 
ceded  by  those  states  respectively.  Ad,  1801,  c^. 
15,  §  1.  And  of  course  therefore,  since  the  ces- 
sion of  the  county  of  Alexandria,  the  laws  of  the 


The  courts  of  the  United  States  in  the  District  of  Columbia 
have  a  like  jurisdiction  upon  personal  property,  with  the  courts 
in  England,  and  in  the  states  of  the  Union  ;  and  in  the  absence 
of  statutory  provisions,  in  the  trial  of  them  they  must  apply 
the  same  common  law  principle  which  regulates  the  mode  of 
bringing  such  actions,  the  pleadings  and  proofs.  McKcnna  vs. 
Fiske,  17  Pet.  245. 


COURTS  OF  THE  DISTRICT  OF  COLUMIUA.  219 


state  of  Maryland  govern,  except  where  altered 
or  modified  by  an  express  act  of  congress. 


CIRCUIT  COURT. 


The  circuit  court  of  the  District  of  Columbia  act.isoi; 

consists  of  a  chief  judge  and  two  assistant  judges,  circuit 

resident  within  the  district,  who  hold  their  offices  whom  ^ 
during  good  behavior.     Any  two  of  them  consti- 
tute a  quorum.     Act  1801,  ch.  15,  §  3. 

The  salary  of  the  chief  justice  is  $2700.00  per  ^sn^6w^ 

annum;  and  that  of  each  of  the  assistant  judges,  saiai^of 

$2500.00.     Acts,  180],  ch.  15,  §  10;  1811,  ch.  40;  i'"^-''- 
'1818,  ch.94. 

Adjournments  made  by  any  one  judge  are  as  acts-iso?, 

valid  as  if  made  by  all ;  and  the  courts  are  in-  — 

,        •   1       1  Adjourn- 

vested  with  the  same  power  of  holding  adjourned  ment, 
sessions,  that  are  exercised  by  the  courts  of  Ma- 
ryland.    Acts,  1802,  ch.5'2,  §  3;  1825,  ch.25. 

For  terms  of  court,  see  Appendix. 

All  writs  and  processes  whatsoever,  which  shall   ^^'^'  ^**- 
issue  from  tlie  said  courts,  shall  be  tested  in  the  writs,  &o. 
name  of  the  chief  judge  of  the  district.  Act  1801, 
ch.  15,  §  15. 


220 


JurasDicTioN  of  the  federal  courts. 


ACT  1801. 

General 
jurisdic- 
tion. 


Over 

crimes. 


GENERAL    JURISDICTION. 

The  said  circuit  court(l),  and  the  judges  there- 
of, shall  have  all  the  powers  by  law  vested  in  the 
circuit  courts  and  the  judges  of  the  circuit  courts 
of  the  United  States.  And  the  said  court  shall 
have  power  to  appoint  a  clerk,  who  shall  take  the 
oath,  and  give  a  bond  with  sureties,  in  the  man- 
ner directed  for  clerks  of  the  district  courts.  Act 
1801,  ch.  15,  §3. 

The  said  court  shall  have  cognizance  of  all 
crimes  and  offences  committed  within  the  said 


(1)  The  act  organizing  the  judicial  system  of  the  District  of 
Columbia  was  passed  only  fourteen  days  after  the  act  which 
reorganized  the  whole  judicial  system  of  the  United  States, 
but  which  was  repealed  the  next  succeeding  session  of  Con- 
gress ;  and  it  is  therefore  to  that  act,  though  repealed  {Act  of 
1801,  ch.  4),  that  we  must  refer  to  determine  the  jurisdiction  of 
this  court.  See  to  this  same  point,  Kendall  vs.  United  States, 
12  Pet.  524. 

The  circuit  court  has  power  to  issue  the  writs  of  mandamus 
to  public  officei's.  This  power  results  from  the  3d  section  of 
the  act  of  1801,  ch.  15.  The  circuit  courts  referred  to  were 
those  established  by  the  act  of  1801,  ch.  4.  The  repeal  of  that 
act  did  not  in  any  manner  affect  that  law  (1801,  ch.  15).  Ken- 
dall vs.  United  States,  12  Pet.  524. 

There  is,  in  the  District  of  Columbia,  no  division  of  power 
between  the  general  and  the  state  governments.  Congress  has 
the  entire  control  over  the  district,  for  every  purpose  of  go- 
vernment ;  and  it  is  reasonable  to  suppose  that,  in  organizing 
a  judicial  department  in  the  district,  all  the  judicial  power  ne- 
cessary for  the  purpose  of  government  would  be  vested  in  the 
courts  of  justice.     Ibid. 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  221 

district  (this  power  is  now  vested  in  the  criminal   act^*> 
court,  by  act  1838,  ch.  192,  the  circuit  court  having  i"  <<-i8''» 

where 

power  only  by  writ  of  error  from  the  criminal  p^rdesaro 

residents. 

court),  and  of  all  cases  in  law  and  equity  between 
parties,  both  or  cither  of  which  shall  be  resident  in  suita 
or  found  within  said  district ;  and  also  of  all  ac-  by°umted 
tions  or  suits  of  a  civil  nature  at  common  law  or 
in  equity,  in  which  the  United  States  shall  be 
plaintiffs  or  complainants;  and  of  all  seizures  on  lu  cases  of 
land  or  water,  and   all  penalties  or  forfeitures  and  for  pe- 
made,  arising,  or  accruing  under  the  laws  of  the 
United  States.     Act  1801,  ch.  15,  §  5. 


AGAINST     WHOM    SUITS    MAY    BE    BROUGHT. 

All  local  actions  shall  be  commenced  in  their    act^wi. 
proper  counties;  and  no  action  or  suit  shall  be  Against 

_  11/  •  1  1  \vhom 

brought  belore  said  court,  by  any  original  process  suits  may 

be  bro'ght 

agamst  any  person  who  shall  not  be  an  inhabitant 
of,  or  found  within  said  district,  at  the  time  of 
serving  the  writ.  Act  1801,  ch.  15,  §  6.  But  see 
act  1802,  ch.  52,  §  5,  page  222. 


TO    HAVE    POWER    OF    LEVY    COURTS    OF    MARYLAND. 

The  circuit  courts  shall  have  and  exercise  the    ^*^*^ 
same  power  and  authority  as  have  heretofore  been  ^^""^ 

*  •'  power  as 

exercised  by  the  county  and  levy  courts  of  the  '^y'-oa't" 

•'■'•'  nt   Mary- 

state  of  Maryland ;  with  power  to  appoint  to  all  •''"'^• 

offices  necessary  for  the  said  district,  under  the 

laws  of  Maryland.     Act  1801,  ch.  24,  §  1. 


222 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1823. 

Amount 
to  give  ju- 
risdictiou. 


AMOUNT    REQUIRED    TO    VEST    JURISDICTION. 

The  judges  of  the  circuit  court  of  the  District 
of  Columbia  shall  not  hold  original  plea  in  the 
said  court,  of  any  debt  or  damage,  in  cases  within 
the  jurisdiction  given  to  justices  of  the  |)eace  by 
this  act,  which  shall  not  exceed  fifty  dollars  ex- 
clusive of  costs,  any  law  to  the  contrary  not- 
withstanding.    Act  1823,  ch.  24,  §  6. 


TO    DELIVER    CRIMINALS    AND    FUGITIVES. 

ACT,  1801.        In  all  cases  where  the  constitution  or  laws  of 
To  deliver  the  United  States  provide  that  criminals  and  fu- 

criminals  .    .  _  .  .  i      i  i  i    t  • 

and  fugi-  gitives  irom  justice,  or  persons  held  to  labor  m 
•ervice.  any  statc,  escaping  into  another  state,  shall  be 
delivered  up,  the  chief  justice  of  the  said  district 
shall  be,  and  he  is  hereby  empowered  and  required 
to  cause  to  be  apprehended  and  delivered  up  such 
criminal,  fugitive  from  justice,  or  persons  fleeing 
from  service,  as  the  case  may  be,  who  shall  be 
found  within  the  district,  in  the  same  manner  and 
under  the  same  regulations  as  the  executive  au- 
thority of  the  several  states  are  required  to  do  the 
same.     Act  1801,  ch.  24,  ^  6. 


WHERE    EITHER    OF    THE    PARTIES    ARE  NON-RESIDENTS. 

ACT.  1802.  So  much  of  the  original  act,  to  which  this  is  a 
supplement,  as  confines  the  jurisdiction  of  the 
courts  of  this  territory  to  cases  between  parties 
who  are  inhabitants  of,  or  residents  within  the 


Where 
parties 
are  non- 
residents, 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  223 


same,  shall  not  be  construed  to  extend  to  any    act,  isoa. 
case  where,  by  the  laws  of  Maryland  and  Vir-  when miy 
ginia  respectively,  attachments  may  issue  to  affect  uchnTenu 
the   property  of  absconding   debtors,   or   others 
having  property  within  the  district,  and  whose 
persons  «Re  not  answerable  to  the  process  of  the 
court.     Act  1802,  ch.  52,  §  5. 

The  circuit  court  shall  have  power  to  proceed  Same 

^  power 

in  all  common  law  and  chancery  cases  which  ovemon 

residents 

now  are  or  hereafter  shall  be  instituted  before  it,  as  sup. 

court  of 

in  which  either  of  the  parties  reside  without  the  ^hau.  of 

Maryland. 

territory,  in  the  same  way  that  non-residents  are 
proceeded  against  in  the  general  court,  or  in  the 
supreme  court  of  chancery  in  the  state  of  Mary- 
land.    Act  1802,  ch.52,  §  1. 


TO    GRANT    LICENSES. 

Ordinary  licenses,  retailer's  licenses,  and  hawk-  ^^^^ 
er's  and  pedler's  licenses,  shall  be  granted  by  the  T"  s""*"* 
circuit  court  of  the  said  district,  as  the  same  are 
granted  by  the  circuit  of  Maryland  ;  and  the 
several  judges  of  the  said  circuit  court  shall  have 
like  authority  to  grant  such  licenses  in  vacation, 
as  the  justices  of  the  courts  of  Maryland.  Act 
1802,  ch.  52,  §  9. 


IN  CASES   OP  ALTERING,  ETC.,  PUBLIC  ROADS. 

If  any  person  shall  alter  or  change,  or  in  any   *  _  " 
manner  obstruct  or  encroach  upon  a  public  road ;  aUerfn'or 


224  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTJ812.  oj.  (.^^^  destroy,  deface,  or  remove  any  mile-stones 

obstruct-  set  up  on  said  road ;  or  put  or  place  any  rubbish, 

ing  public  ^                                      J           r               r                    J                       » 

as-  dirt,  logs,  or  make  any  pit  or  hole  therein :  such 


roa 


persons  may  be  indicted  in  the  circuit  court  for 
the  District  of  Columbia,  and,  being  convicted 
thereof,  shall  be  fined  or  imprisoned,  ill  the  dis- 
cretion of  the  court,  according  to  the  nature  of 
the  offence.     Act  1812,  ch.  117,  §  7. 

IN   CASES    OF    INSOLVENT    DEBTORS. 

^*^?^'       ^i^y  one  of  the  judges(l)  of  the  circuit  court, 

In  c^s  of  ^pon  petition  filed  by  any  debtor  in  confinement, 

debtorT^    "wlio  sliall  liavc  been  a  resident  of  the  district  for 

one  year,  offering  to  deliver  up  all  his  property 

for  the  benefit  of  his  creditors,   and   upon  the 

debtor  complying  w^ith  the  other  provisions  of  the 

act,  may  appoint  a  trustee  of  his  effects,   and, 

upon  satisfactory  evidence,  discharge  the  debtor 

from  imprisonment. 

Who  may        No  pcrsou,  hov^cvcr,  who  is  imprisoned  for  any 

charged,     brcacli  of  tlic  laws,  can  be  discharged  ;  and  the 

discharge  is  only  of  the  same  effect  of  the  different 

states,  as  if  made  under  the  insolvent  laws  of  such 

state. 

What  will       Such  discharge  will  not  be  granted,  if  there  has 

prevent   a  r>  i  t  • 

discharge.   Dccn  any  fraud  or  deceit  on  the  part  of  the  debtor 

(1)  A  citizen  of  the  district  can  not  be  discharged  by  the 
insolvent  law  of  Maryland,  out  of  the  district.  Reilly  vs.  La- 
mar, 2  Cra.  344  ;   1  Cond.  419. 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  225 

towards  his  creditors ;  or  if  he  has  lost  at  any  one  ^'^'j^ij;'*"' 
time,  within  the  previous  twelve  months,  more  ~ 
tlian  three  hundred  dollars  by  gaming,  and  has 
assigned  or  conveyed  any  part  of  his  property 
witli  intent  to  give  a  preierence  to  any  one.  Act 
1803,  ch.Sl ;  1806,  ch.  36,  §  2,  See  also  Act  1812, 
ch.  106,  §  2. 

TO  SELL  infant's  ESTATES. 

Where  a  guardian  thinks  the  interests  of  his    act,  i843. 
ward  will  be   promoted  by  the  sale  of  his  real  To  seu 

1  •  •  1  •!!  1      •  1    ^'^'*'  estate 

estate,  the  circuit  court,  on  a  bill  being  presented  oi  iufants. 
it  for  that  purpose,  will  decree  such  sale,  if  deemed 
best  from  the  evidence  in  the  case ;  but  not, 
however,  if  the  testator  has  otherwise  expressly 
directed.  In  the  case  of  the  death  of  the  infant 
before  twenty-one,  the  proceeds  of  such  sale  are 
to  be  deemed  as  real  estate.     Act  1843,  ch.  87. 

OVER    TRUSTPJES    OF    RELIGIOUS    SOCIETIES. 

When  any  conveyance  or  devise  of  any  lot,    ^^^ 
tract  or  parcel  of  land,  for  the  use  and  benefit  of  Toappoim 

trustees 

any  religious  congres^ation  as  a  place  of  worship,  overpm- 
has  been  heretofore  or  shall  hereafter  be  made,  religious 

societiea. 

whetlier  by  the  intervention  of  trustees  or  not,  the 
circuit  court  of  the  District  of  Columbia  shall,  on 
application  of  the  United  States  attorney  far  the 
District  of  Columbia,  on  behalf  of  the  authorised 
authorities  of  any  such  religious  congregation, 
15 


226  JURISDICTION  OF  THE  FEDERAL  COURTS. 

have  full  power  and  authority  to  appoint  trustees, 
originally,  where  there  are  none,  or  to  substitute 
others  from  time  to  time,  in  cases  of  death,  re- 
fusal or  neglect  to  act,  removal  from  the  county, 
or  other  inability  to  execute  the  trust  beneficially 
and  conveniently;  and  the  legal  title  shall  there- 
upon become  exclusively  vested  in  the  whole 
number  of  the  trustees  and  their  successors.  Act 
1844,  ch.  101,  §  3. 

UNDER    POST    OFFICE    ACTS. 

UaJer  Same  as  circuit  and  district  courts.    See  "  Cir- 

po8t  ofiice 

acts.         cuit  Courts,"  a?i^e  page  1 70. 

IN    CASES    OF    CLAIMS    MADE    UPON    AWARDS    OF    THE 
BOARD    OP    MEXICAN    COMMISSIONERS. 

ACTJ849.  jn  all  cases  arising  under  this  act,  where  any 
In  cases  of  persou  or  persons,  other  than  those  in  whose  favor 
claims  to°  thc  award  has  been  or  may  be  made,  shall  claim 
awarded  thc  amouut  SO  awardcd,  or  any  part  thereof;  and 
Mexican  shall,  witliiu  thirty  days  from  the  passage  of  this 
Bion.  act  or  from  the  date  of  the  said  award,  notify  the 

secretary  of  the  treasury  of  his,  her,  or  their  in- 
tention to  contest  the  payment  of  the  same  as 
awarded,  and  shall  file  with  the  district  attorney 
of  the  United  States  a  bond,  with  good  and  suf- 
ficient surety  to  be  approved  by  him,  for  the  pay- 
ment of  the  costs  and  damages  arising  therefrom, 
the  amount  so  awarded,  and  the  payment  of  which 
is  contested  as  aforesaid,  shall  be  and  remain  in 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  227 

the  treasury  of  the  United  States,  subject  to  the    actusw. 
decision  of  the  courts  of  the  United  States  thereon ;  injunctiou 

may  bt? 

and  thereupon  the  said  party  so  claimino^  the  sum  granted, 
so  awarded,  or  any  part  thereof,  shall  be  at  liberty  obeyed  by 

.  .  .         .        ,  .  .      treasury 

to  file  his  bill  for  relief  and  injunction  in  the  circuit  depaniu't. 
court  of  the  District  of  Columbia,  upon  the  prin- 
ciples which  govern  courts  of  equity;  and  any 
injunction  thereupon  granted  by  the  court,  shall 
be  respected  by  the  treasury  department ;  and  the 
said  case  in  ecpity  shall  thereupon  be  conducted 
and  governed  in  all  respects  as  in  other  cases  in 
equity.     Act  1849,  ch.  107,  §  8. 


APPELLATE  JURISDICTION. 


FROM    CRIMINAL    COURT. 


The  circuit  court  of  the  District  of  Columbia,  ^^"^i^'.^' 
or  any  judge  thereof  during  the  vacation  of  the  ^  ^^^^^^ 
court,  shall  have  power  to  award  a  writ  of  error,  .jv"^'?  *^" 
in  any  criminal  case  whatever,   wherein  final  ^oJj"""'^^ 
judgment  shall  have  been  pronounced  by  the  cri- 
minal court,  returnable  to  the  circuit  court  then 
in  session,   or  to  the  next  stated  term  thereof, 
convicting  any  pcrsonof  any  crime  or  misdemea- 
nor ;  and  to  reverse  said  judgment,  or  remand 
the  case,  and  order  a  new  trial,  or  such  other 
proceeding  therein  as  the  nature  of  the  case  may 
require.    Act,  1838,  ch.  192,  §  5 ;  and  1839,  ch.  31, 
§5. 


228  JURISDICTION  OF  THE  FEDERAL  COURTS. 

FROM    justices'    COURTS. 

Aciufs.        ifj  all  cases  where  the  debt  or  demand  doth 
From  jus-  exceed  the  sum  of  five  dollars,  and  either  plaintiff 

tice's 

courts.  or  defendant  shall  think  himself  aggrieved  by  the 
judgment  of  any  justice  of  the  peace,  he  or  she 
shall  be  at  liberty  to  appeal  to  the  next  circuit 
court,  before  the  judges  thereof;  who  are  hereby, 

be^sum^  °  upon  tlic  petition  of  the  appellant,  in  a  summary 

™^'^^'  way,  empowered  and  directed  to  hear  the  allega- 
tions and  proofs  of  both  parties,  and  determine 
upon  the  same  according  to  law  and  the  equity 
and  right  of  the  matter,  at  the  same  term  in  which 
the  said  petition  shall  be  exhibited,  without  fur- 
ther continuance  or  delay,  unless  it  shall  appear 
to  the  said  court  that  farther  time  ought  to  be 
given  to  the  party  apjilying  for  the  same ;  and 

b"byj^ry  cithcr  of  the  said  parties  may  demand  a  trial  by 
jury,  or  leave  the  cause  to  be  determined  by  the 
court,  at  their  election ;  and  in  any  case  of  an 

When        appeal  from  the  decision  of  a  justice  of  the  circuit 

judgment 

miiy  be      court,  wlicrc  two  summouses  against  the  appellee 

tiiken,  on 

default  of  shall  DC  rcturncd  7ion  est,  or  one  attachment  re- 
turned non  estj  and  the  said  appellee  shall  not 
appear,  the  court  may  proceed  to  hear  and  deter- 
mine such  case,  in  the  same  manner  as  if  the 
When  ap.   appellee  had  regularly  appeared  :  Provided  that 
Sot  brilis-  110  appeal  from  the  judgment  of  any  justice  of  the 
missed.      peacc  to  the  circuit  court  of  the  District  of  Co- 
lumbia shall  be  dismissed  because  the  same  had 
not  been  prayed  to  the  circuit  court  next  after  the 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  229 


rendition  of  such  judgment,  unless  the  court  shall   ^ciwaaa. 
be  satisfied  that  the  defendant  had  notice  of  such 
judgment  at  least  ten  days  before  the  sitting  of 
said  circuit  court.     Act,  1823,  ch.  24,  §  7. 

The  corporation  of  Georgetown  may  recover   act,  mu 
fines,  Sec,  incurred  under  their  charter,  before  any  win  ro 
magistrate  of  the  district ;  and  appeals  lie  from  S'o?" 
such  judgments,  as  in  other  cases  of  small  debts,  lowiwi  e 
Act,  1841,  cA.  11.  P'""'^- 

FROM  orphans'  COURTS,  AND  COURTS  OP  REGISTER 
OF  WILLS. 

Appeals(l)  from  the  said  courts  shall  be  to  the  act.isoi. 
circuit  court  of  the  District  of  Columbia,  who  Appluate 
shall  therein  have  all  the  powers  of  the  chancellor  il'o.rfrom 
ofthe  state  of  Maryland.     Act,  1801,  ch.  15,  §  12.  ^J'i'rt  &c. 

For  an  enumeration  of  the  cases  in  which  the 
judgments  and  decrees  of  the  said  circuit  court 
may  be  carried  to  the  supreme  court  of  the  United 
States,  see  "Supreme  Court,  Appellate  Jurisdic- 
tion," page  125. 

(1)  The  supreme  court  of  the  United  States  has  jurisdiction 
of  appeals  from  the  orphans'  court,  through  the  circuit  court, 
by  virtue  of  the  act  of  1801.  Nicholls  vs.  Hodge's  ExWs,  1 
Pet.  565. 


230  JURISDICTION  OF  THE  FEDERAL  COURTS. 


DISTRICT  COURT. 


GENERAL     JURISDICTION. 

ACTvisoa.       rpj^g  chief  judge  of  the  District  of  Columbia 
District      s\\vl\]  hold  a  district  court  of  the  United  States  for 

court,  who 

holds,  iuid  ti^e  sai(t  district :  which   court   shall  have  and 

powers  of. 

exercise,  within  the  said  district,  the  same  powers 
and  jurisdiction  which  are  by  law  vested  in  the 
district  courts  of  the  United  States.  Act,  1802, 
c/i.31,  §24. 

For  terms  of  court,  see  Appendix. 


ON    APPEAL    FROM    THE    DECISION  OF  THE  COMMISSIONER 
OF    PATENTS, 

ACTV1839.       jj^  cases(l)  where  an  appeal  is  now  allowed 
On  appeal  bv  law  from  thc  dccislon  of  the  commissioner  of 

from  deci- 

eiou  of         . 

(1)  The  seventh  section  referred  to  in  the  last  above  quoted 
act,  is  as  follows  : 

On  the  filing  of  any  such  application,  description  and  spe- 
cification, and  the  payment  of  the  duty  hereinafter  provided, 
the  commissioner  shall  make,  or  cause  to  be  made,  an  exami- 
nation of  the  alleged  new  invention  or  discovery ;  and  if,  on 
any  such  examination,  it  shall  not  appear  to  the  commissioner 
that  the  same  had  been  invented  or  discovered  by  any  other 
person  in  this  country,  prior  to  the  alleged  invention  or  dis- 
covery thereof  by  the  applicant ;  or  that  it  had  been  patented 
or  described  in  any  printed  publication  in  this  or  any  foreign 
country,  or  had  been  in  public  use  or  on  sale,  with  the  ap- 
plicant's consent  or  allowance,  prior  to  the  application,  if  the 
commissioner  .shall  deem  it  to  be  suflTiciently  useful  and  im- 
portant, it  shall  be  his  duty  to  issue  a  patent  therefor.     But 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  231 


patents  to  a  board  of  examiners  provided  for  in    ^^'^  '^'^ 

commis- 
sioner  o 
patents. 


the  seventh  section  of  the  act  to  which  thiiS  is  commis 

sioner  of 


whenever,  on  such  examination,  it  shall  appear  to  the  com- 
rnissioner  that  the  applicant  was  not  the  original  and  first  in- 
ventor or  discoverer  thereof,  or  that  any  part  of  that  which  is 
claimed  as  new  had  before  been  invented  or  discovered,  or 
patented  or  described  in  any  printed  jiublication  in  this  or  any 
foreign  country  as  aforesaid,  or  that  the  description  is  defective 
and  insufficient,  he  shall  notify  the  applicant  thereof,  giving 
him  briefly  such  information  and  reference  as  may  be  useful  in 
judging  of  the  propriety  of  renewing  his  application,  or  of 
altering  his  specifioation  to  embrace  only  that  part  of  the  in- 
vention or  discovery  which  is  new.  In  every  such  case,  if  the 
applicant  shall  elect  to  withdraw  his  application,  relinquishing 
his  claim  to  the  model,  he  shall  be  entitled  to  receive  bftk 
twenty  dollars,  part  of  the  duty  required  by  this  act,  on  filing 
a  notice  in  writing  of  such  election  in  the  Patent  Office  ;  a  copy 
of  which,  certified  by  the  commissioner,  shall  be  a  sufficient 
warrant  to  the  treasurer  for  paying  back  to  the  said  applicant 
the  said  sum  of  twenty  dollars.  But  if  the  applicant,  in  such 
case,  shall  persist  in  his  claim  for  a  patent,  with  or  without  any 
alteration  of  his  specification,  he  shall  be  required  to  make  oath 
or  affirmation  anew  in  manner  as  aforesaid ;  and  if  the  spe- 
cification and  claim  shall  not  have  been  so  modified,  as,  in  the 
opinion  of  the  commissioner,  shall  entitle  the  applicant  to  a 
patent,  he  may,  on  appeal,  and  upon  request  in  writing,  have 
the  decision  of  a  board  of  examiners,  to  be  composed  of  three 
disinterested  persons,  who  shall  be  appointed  for  that  purpose 
by  the  secretary  of  state,  one  of  whom  at  least  to  be  selected, 
if  practicable  and  convenient,  for  his  knowledge  and  skill  in  the 
particular  art,  manufacture,  or  branch  of  science  to  which  the 
alleged  invention  appertains ;  who  shall  be  under  oath  or  af- 
firmation for  the  faithful  and  impartial  performance  of  the  duty 
imposed  upon  them  by  said  appointment.  Said  board  shall  be 
furnished  with  a  certificate  in  writing  of  the  opinion  and  dcci- 


232  JURISDICTION  OF'  THE  FEDERAL  COURTS. 

ACTU339.   additional,  the  party,  instead  thereof,  shall  have 

refusing     right  to  appeal  to  the  chief  justice  of  the  district 

tiou  for  a    court  of  tlic  United  States  for  the  District  of  Co- 
patent. 

sion  of  the  commissioner,  stating  the  particular  grounds  of  his 
objection,  and  the  part  or  parts  of  the  invention  which  he  con- 
siders as  not  entitled  to  be  patented.  And  the  said  board  shall 
give  reasonable  notice  to  the  applicant,  as  well  as  to  the  com- 
missioner, of  the  time  and  place  of  their  meeting,  that  they  may- 
have  an  opportunity  of  furnishing  them  with  such  facts  and 
evidence  as  they  may  deem  necessary  to  a  just  decision  ;  and 
it  shall  be  the  duty  of  the  commissioner  to  furnish  to  the  board 
of  examiners  such  information  as  he  may  possess,  relative  to 
the  matter  under  their  consideration.  And  on  an  examination 
and  consideration  of  the  matter  by  such  board,  it  shall  be  in 
tleir  power,  or  of  a  majority  of  them,  to  reverse  the  decision 
of  the  commissioner  either  in  whole  or  in  part ;  and  their  opi- 
nion being  certified  to  the  commissioner,  he  shall  be  governed 
thereby  in  the  further  proceedings  to  be  had  on  such  applica- 
tion.    Act  1836,  ch.  357. 

An  appeal  is  also  given  to  the  said  judge  by  the  8th  section 
of  the  act  of  1836,  in  the  case  of  interfering  applications. 

The  judge  can  not  decide  upon  any  other  matter  than  that 
which  arises  upon  the  reasons  of  appeal.  He  is  to  revise  the 
decision  of  the  commissioner  only  in  respect  to  the  points  in- 
volved in  the  reasons  of  appeal.  Arnold  vs.  Bishop,  decided 
by  the  chief  judge,  Nov.  25,  1841. 

The  judge's  "  decision,  so  certified,  shall  govern  the  further 
proceedings  of  the  commissioner  in  such  case."  This  applies 
only  to  so  much  of  the  case  as  is  involved  in  the  reasons  of 
appeal ;  and  the  appeal  itself  can  be  considered  only  as  an 
appeal  to  so  much  of  the  decision  of  the  commissioner,  as  is 
affected  by  such  reasons.  If,  therefore,  after  the  judge  shall 
have  decided  in  favor  of  the  applicant  upon  the  points  involved 
in  his  reasons  of  appeal,  other  sufficient  reasons  remain  for 
rejecting  the  claim  for  a  patent,  untouched  by  the  decision  of 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  233 


lumbia,  by  giving  notice  thereof  to  the  commis-   *ctmi^ 
sioncr,  and  filing  in  the  patent  office,  within  such 
time  as  the  commissioner  shall  appoint,  his  rea- 

the  judge,  it  would  seem  that  the  commissioner  might  properly- 
still  reject  it.     Ihid. 

The  power  and  jurisdiction  given  to  the  board  of  examiners, 
and  to  the  judge,  are  special  and  limited,  and  must  be  construed 
and  exercised  strictly.  The  judge  can  only  decide  such  ques- 
tions, and  render  such  judgment  as  he  is  expressly  by  the  sta- 
tute to  decide  and  render.  Under  the  8th  section,  the  judge  is 
only  "  to  determine  which,  or  whether  cither  of  the  applicants 
is  entitled  to  rtceive  a  patent  as  prayed  for."  He  can  only  act 
in  a  case  where  there  are  contending  applicants  for  a  patent, 
and  those  applicants  must  have  ''prayed  for"  a  patent.  A 
patentee  is  not  an  applicant.  Therefore  where  A  applied  for  a 
patent,  which,  in  the  opinion  of  the  commissioner,  interfered 
with  an  already  existing  patent  granted  to  B,  and  notice  was 
given  to  the  holder  of  the  existing  patent,  under  the  Sth  section 
of  the  act  of  1836  ;  and  the  patentee  and  the  applicant  contested 
their  rights  before  the  commissioner,  who  decided  "  that  a 
patent  ought  to  issue  to  the  applicant  A,  as  the  first  original 
inventor,"  from  which  decision  the  patentee  B  appealed,  it  was 
held  that  the  judge  had  no  jurisdiction  upon  an  appeal  from  the 
decision  of  the  commissioner,  not  rejecting  but  granting  the 
application  ;  and  that  in  no  case  could  an  appeal  be  taken  from 
a  decision  of  the  commissioner,  unless  the  application  had  been 
rejected  by  him.  The  reason  assigned  for  giving  an  appeal 
from  the  rejection  of  an  application  for  a  patent,  and  not  giving 
an  appeal  from  thetgranting  of  a  patent,  was,  that  the  applicant 
whose  application  was  rejected,  had  no  other  remedy.  He  can 
not  go  into  a  court  of  law  or  of  equity  to  obtain  a  patent,  nor 
maintain  any  action  for  the  use  of  his  invention.  But  if  the 
commissioner  grant  a  patent  erroneously,  its  validity  may  bo 
tried  ;  and  any  person  interested  may  defeat  it,  by  a  suit  at  law 
or  in  equity.     Pomcroy  vs.  Connison,  decided  Nov.  21,  1842. 


4  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACTWS30.  gQfjg  Qf  appeal  specifically  set  forth  in  writing; 
and  also  paying  into  the  patent  office,  to  the 
credit  of  the  patent  fund,  the  sum  of  twenty-five 
dollars.  And  it  shall  be  the  duty  of  said  chief 
justice,  on  petition,  to  hear  and  determine  all  such 
appeals,  and  to  revise  such  decisions  in  a  sum- 
mary way,  on  the  evidence  produced  before  the 
commissioners,  at  such  early  and  convenient  time 
as  he  may  appoint,  first  notifying  the  commis- 
sioner of  the  time  and  place  of  hearing ;  whose 
duty  it  shall  be  to  give  notice  thereof  to  all  parties 
who  appear  to  be  interested  therein,  in  such 
manner  as  said  judge  shall  prescribe.  The  com- 
missioner shall  also  lay  before  the  said  judge  all 
the  original  papers  and  evidence  in  the  case,  to- 
gether with  the  grounds  of  his  decision,  fully  set 
forth  in  writing,  touching  all  the  points  involved 
by  the  reasons  of  appeal,  to  which  the  revision 
shall  be  confined.  And  at  the  request  of  any 
party  interested,  or  at  the  desire  of  the  judge,  the 
commissioner  and  the  examiners  in  the  patent 
office  may  be  examined  under  oath,  in  explanation 
of  the  principles  of  the  machine  or  other  thing 
for  which  a  patent  in  such  case  is  prayed  for.  And 
it  shall  be  the  duty  of  the  said  judge,  after  a  hear- 
ing of  any  such  case,  to  return  aW  the  papers  to 
the  commissioner,  with  a  certificate  of  his  pro- 
ceedings and  decision,  which  shall  be  entered  of 
record  in  the  patent  office ;  and  such  decision,  so 
certified,  shall  govern  the  further  proceedings  of 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  235 


the  commissioner  in  such  case  :  Provided,  how-  act.  isw. 
ever,  that  no  opinion  or  decision  of  the  judge  in 
any  such  case  shall  preclude  any  person  interested 
in  favor  or  against  the  validity  of  any  patent 
which  has  been  or  may  hereafter  be  granted,  from 
the  right  to  contest  the  same  in  any  judicial  court, 
in  any  action  in  which  its  validity  may  come  in 
question.     Act,  1839,  cA.  88,  §  11. 


CRIiMINAL  COURT. 


The  criminal  court  consists  of  a  single  judge,    actvi838 
at  the  yearly  salary  of  $2000.00.      Act,  1838,  ch.  Criminal 

court,  how 
192,  &    1.  composed. 

It  holds  its  terms  at  the  times  and  places  spe-  ^^I'^JJ  ""^ 
cified  by  law;  and  the  judge  of  the  court  has 
power  to  hold  special  terms  whenever  it  shall 
seem  to  him  necessary  to  order  the  same,  of  which 
order  ten  days'  previous  notice  must  be  given. 
J  bid.  §  2. 

In  case  of  the  inability  of  the  judge,  from  sick-    ^^^^39. 
ness  or  any  other  le^al  cause,  to  hold  the  court,  )^''^"  ^'j 

Jo'  '    liold  when 

it  may  be  held  by  the  chief  judge  of  the  circuit  J'j^'?''  ".'j^*- 
court ;  or,  in  case  of  his  inability  to  hold  the  same, 
by  the  senior  assistant  judge  of  said  circuit  court. 
Act,  1839,  c/t.3l,  §  1. 

If,  after  the  court  has  commenced  its  session,  oristak'n 

sick  diir- 

the  judge  should  he  taken  sick,  he,  or,  in  his  ab-  iugtcrm. 


236  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT,  1839. 


sence,  the  clerk,  may  adjourn  the  same  from  day 

to  day,  or  from  week  to  week ;  but  if  the  sickness 

of  the  judge  shall  continue  longer  than  a  month, 

the  chief  judge  of  the  circuit  court,  or,  in  case 

of  his  inability,  the  senior  assistant  judge  of  the 

circuit  court,  shall  hold  the  same.     Act,  1839,  ch. 

31,  §  7. 

w* te!t'd       "^^^  writs  and  process  which  shall  issue  from 

the  said  court,  shall  be  tested  in  the  name  of  the 

judge  of  the  said  court.     Act,  1839,  ch.  31,  §  2. 

For  times  of  sitting  of  the  court,  see  Appendix. 


GENERAL   JURISDICTION. 


ACT,  183?.       From  and  after  the  passage  of  this  law,  a  cir- 
Criminai    cuit  court  shall  bc  established  in  the  District  of 

court,  ju-  n  ^  •     1         />       11  •  ^         n~ 

risdiction    Columbia,  for  the  trial  ot  all  crimes  and  onences 

of. 

against  the  laws  now  in  force  in  the  said  district, 
and  such  as  may  hereafter  be  enacted ;  which 
court  shall  be  styled  the  Criminal  Court  of  the 
District  of  Columbia.     Act,  1838,  ch.  192,  §  1. 
OT«r  The  said   criminal  court   shall  have  all   the 

crimes, 

and  fmea,  jurisdiction  uow  held  by  the  circuit  court  in  said 
district,  for  the  trial  and  punishment  of  all  crimes 
and  offences,  and  the  recovery  of  all  fines,  for- 
feitures and  recognizances.  Act  1838,  ch.  192,  §  4. 

TO    POSTPONE    EXECUTION    FOR    WRIT    OP    ERROR. 
ACT,  V3\ 

To  illt-         To  enable  a  person,  convicted  by  the  judgment 
pone  exe-   ^^  ^^^  ^^j  j  Criminal  court,  to  apply  for  a  writ  of 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  237 


error,  in  all  cases  where  the  judgment  shall  be    ^cTjesa 
death  or  confinement  in  the  penitentiary,  the  said  J",;,'^"  j,^"/ 
criminal  court  shall,  on  application  of  the  party  ^[.^^^''^°^ 
accused,  postpone  the  final  execution  thereof,  to 
a  reasonable  time  beyond  the  next  term  of  said 
circuit  court,  not  exceeding  in  any  case  thirty 
days  after  the  end  of  such  term  of  the  circuit 
court.     Acty  1838,  ch.  192,  §  6. 

TO    ADJOURN    QUESTIONS    OP    LAW    TO    CIRCUIT    COURT. 

The  said  criminal  court,  in  any  case,  may,  with    ^^^^ 
the  consent  of  the  person  accused,  adjourn  any  ToadjoVn 

^  '         J  J     questions 

question  of  law  to  the  circuit  court,  which  may  "/  '".^  ^F 

^  •'      the  circuit 

be  there  argued  and  decided,  though  such  accused  court. 
person  be  not  present.     Act,  1838,  cJl.  192,  §  7. 

POWERS  OF  JUDGE,  OUT  OF  COURT. 

The  judge  of  the  said  court  shall,  out  of  court,    actvis^. 
in  all  criminal  matters,  and  breaches  of  the  peace  Powers  of 
and    good   behavior,  have  and  exercise  all   the  of  court. 
powers  by  law  vested  in  the  circuit  court  of  the 
United  States  and  the  judges  thereof,  and  which 
were  vested  by  the  acts  establishing  the  circuit 
court  of  the  District  of  Columbia,  and  the  judges 
of  the  same.     Act  1839,  ch.  31,  §  3. 

TO    MAKE    RULES,    AND    HOLD    TO    BAIL. 
ACT  1901 

The  judge  of  the  said  criminal  court  shall  have       _ 
power  to  make  all  needful  rules  of  practice  for  JuleTaud 


238  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACT^839.  ^jjg  orderly  and  speedy  administration  of  the 
hold  to  business  of  the  same,  as  he  shall  deem  expedient, 
not  inconsistent  with  the  laws  and  constitution 
of  the  United  States;  and  he  shall  have  the  same 
power  and  authority  as  is  exercised  by  the  judges 
of  the  circuit  court  of  the  District  of  Columbia 
to  require  bail,  in  all  cases  where  by  law  bail  may 
be  required.     Act,  1839,  ch.  31,  §  4. 


WHEN   THE    JUDGE    IS    RELATED    TO    ANY    OF    THE 
PARTIES. 

ACT,  1839.       In  any  case  wherein  the  parties,  or  any  of  them, 
Proceed-     may  bc  related  to  the  judge  of  the  criminal  court, 

ings  when  i     i  o  i  ^ 

judge  is     then  such  case  and  the  record  thereoi  may  be  sent 

related  to  ..  n     ^       t\'    .    '    .        n  r^ 

parties.  to  the  ncxt  circuit  court  01  the  District  oi  L^o- 
lumbia,  to  be  there  tried  and  determined,  and 
sentence  passed  and  executed.  Act  1839,  ch.  31, 
§8. 

For  appeals  from,  see  "  Circuit  Court." 


REGISTER'S  AND  ORPHAN'S  COURTS. 

ACTS.  1801, 

ifflo.  These  courts  are  composed  each  of  a  single 

Eeeister's   iudgc,  wlio  rcccives  a  Salary  of  one  thousand  dol- 

and  or- 

phan'8       lars.     Acts,  1801,  ch.  15,  §  12;   1830,  ch.  162,  §  2. 

courts. 
Judge  of, 
and  salary 

^^-  GENERAL    JURISDICTION. 

ACT^soL        They  have  all  the  powers,  perform  all  the  du- 
Generai     tics,  and  leccive  the  like  fees,  as  are  exercised, 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  239 


performed  and  received  by  the  registers  of  wills    *"^'[^^*- 
and  judges  of  the  orphan's  court  within  the  state  {j^^"^^^' 
of  Maryland.     Act,  1801,  c/i.  15,  §  12. 

See  also  further  as  to  jurisdiction,  Act,  1846,  chs. 
8  and  97. 

ON    FOREIGN    LETTERS    OF    ADMINISTRATION. 

It  shall  be  lawful(l)  for  any  person  or  persons    Acr^isia 
to  whom  letters  testamentary  or  of  administration  Over  for- 

''  eigu  let- 
ters  of  ad- 

(1)  The  act  of  1842,  ch,  106,  §  11,  gives  to  an  executor  or 
administrator,  appointed  in  any  state,  a  right  to  recover  from 
any  individual  within  the  District  of  Columbia,  effects  or  moneys 
belonging  to  the  testator  or  his  executor,  in  w^hatever  way  the 
same  may  have  been  received ;  and  to  receive  and  give  dis- 
charges for  such  assets,  without  suit ;  and  to  receive  from  the 
government  of  the  United  States,  either  in  the  District  of  Co- 
lumbia, or  where  letters  may  have  been  granted,  any  money 
due  to  the  testator  or  his  representatives.  Kane  vs.  Paul,  14 
Pet.  33. 

The  act  places  the  foreign  administrator  on  the  same  footing 
cis  if  letters  had  been  granted  to  him  in  the  District  of  Co- 
lumbia, and  places  him  under  the  same  responsibilities ;  and 
the  court  is  bound  to  take  notice  of  foreign  administrators 
coming  within  the  district.      Vaug/ian  vs.  Northrup,  15  Pet.  1. 

The  power  is  limited  by  its  terms  to  the  institution  of  suits, 
and  does  not  authorise  suits  against  an  executor  or  administra- 
tor,    Ih'ul. 

The  effect  of  this  law  was  to  make  all  debts  due  by  persons 
in  the  district,  not  local  assets,  for  which  the  administrator  was 
bound  to  account  in  the  courts  of  the  district  ;  but  general 
assets,  which  he  had  full  authority  to  receive,  and  for  which  he 
vyas  bound  to  account  in  the  courts  of  the  state  from  which  ho 
derived  his  letters  of  administration.     Ihid. 


240  JURISDICTION  OF  THE  FEDERAL  COURTS. 


IAC1U812  ijath  been  or  may  hereafter  be  granted  by  the 
ministra-  proper  authority  in  any  of  the  United  States,  of 
the  territories  thereof,  to  maintain  any  suit  or 
action,  and  to  prosecute  and  recover  any  claim 
in  the  District  of  Columbia,  in  the  same  manner 
as  if  the  letters  testamentary  or  of  administration 
had  been  granted  to  such  person  or  persons  by 
the  proper  authority  in  the  said  district ;  and  the 
letters  testamentary  or  of  administration,  or  a  copy 
thereof,  certified  under  the  seal  of  the  authority 
granting  the  same,  shall  be  sufficient  evidence  to 
prove  the  granting  thereof,  and  that  the  person 
or  persons,  as  the  case  may  be,  hath  or  have  ad- 
ministration.    Acty  1812,  ch.  106,  §  11. 


LEVY  COURTS. 


ACT^aoi.       ipjjg  |g^  court(l)  is  composed  of  the  magis- 
i-evy         trates  of  the  district,  and  possess  and  exercise  the 

courts,  ^ 

powers  of.  game  powers,  perform  the  same  duties,  and  re- 
ceive the  same  fees  and  emoluments,  as  the  levy 
courts  or  commissioners  of  county  for  the  state  of 
Maryland.     Act,  1801,  ch.  24,  §  4. 

(I)  The  levy  court  of  Washington  county  is  not  entitled  to 
one  half  of  all  the  fines,  penalties,  and  forfeitures  imposed  by 
the  circuit  court  in  cases  at  common  law,  and  under  the  acts 
of  congress,  as  well  as  the  acts  of  the  assembly  of  Maryland, 
adopted  by  congress  as  the  law  of  the  District  of  Columbia. 
Levy  Court  of  Washington  vs.  Ringgold,  5  Pet.  45 L 


COURTS  OF  THE  DISTRICT  OF  COLUMBIA.  041 


See  also  as  lo  their  further  jurisdiction,   Act,    act^^'- 
1812,  ch.  117. 


JUSTICES'  COURTS. 


For  jurisdiction  of,  see  Acts,  1801,  ch.  15,  §  11;  Ji.siices- 


courts, 


1823,  ch,  24;  and  1841,  ch.  11(1).  power's  of. 

(1)  A  justice  of  tlie  peace,  in  the  District  of  Columbia,  is  an 
ofiicer  of  the  government  of  the  United  States ;  and  is  exempt 
from  militia  duty.    Wise  vs.  Wi/Zwrs,  3  Cra.  331  ;   1  Cond.  552. 


16 


JURISDICTION 


FEDERAL   COURTS    OF    THE    UxXTTED    STATES. 


TERRITORIAL    COURTS. 


TERRITORIAL   COURTS. 


GENERAL  PROVISIONS. 


CHARACTER     OF. 


The   territorial  courts   are   not  constitutional  Term  rial 

courts,  not 

courts,  in  which  the  judicial  power  conferred  by  ^-'^Jlj^l^jit 
the  constitution  on  the  general  government  can  legislative 

~  '-'  courts. 

be  deposited.  They  are  incapable  of  receiving  it. 
They  are  legislative  courts,  created  in  virtue  of 
the  general  right  of  sovereignty  which  exists  in 
the  government,  or  in  virtue  of  that  clause  which 
enables  congress  to  make  all  needful  rules  and 
regulations  respecting  the  territory  belonging  to 
the  United  States.  The  jurisdiction  with  which 
they  are  invested  is  not  a  part  of  that  judicial 
power  which  is  defined  in  the  third  article  of  the 
Constitution,  but  is  conferred  by  congress  in  the 
execution  of  those  general  powers  which  that 
body  possesses  over  the  territories  of  the  United 
States.  In  legislating  for  them,  congress  exercises 
the  combined  powers  of  a  general  and  of  a  state 
government.  Aincr.  Ins.  Co.  vs.  Canter,  1  Pet. 
511,  546. 


246  JURISDICTION  OF  THE  FEDERAL  COURTS. 


GENERAL    JURISDICTION    OF. 

tlouor^e-       '^^^^  powers   conferred   on  the  courts  of  the 

neural  lawa  United  Statcs  by  the  various  acts  of  congress,  do 

not  apply  to  the  territorial  courts,  unless  they  are 

specially  named.     In  the  following  cases,  such 

powers  have  been  conferred  on  these  courts. 


IN    CASES    UNDER    THE    INDIAN    ACTS. 

Powers  Same  powers  as  circuit  courts.     Act,  1834,  ch. 

dian  acu.    161,  §  27.     Scc  "  Circult  Courts,"  page  167. 


IN    CASES    UNDER   THE    POSTOFFICE    ACTS. 


ACT^wa        ^ij  p3^ggg  of  action  may  be  sued,  and  all  of- 
Powera      fendcrs  prosecuted  before  any  circuit  or  district 

under  ■•■  J 

pust  ofTice  court  of  the  United  States,  or  of  the  District  of 
Columbia,  or  of  the  territories  of  the  United  States. 
Act,  1845,  ch.  43,  §  20. 

See  "  Circuit  Courts,"  page  170,  for  notes. 


POWER    TO    APPOINT    COMMISSIONERS. 

ACT,  18:50.  The  supreme  court  of  each  organized  territory 
Mayap  of  thc  United  States  shall  have  the  same  power 
mis8i(me?s  to  appolut  commissioncrs  to  take  acknowledg- 
uiCaffi-    ments  of  bail  and  affidavits,  and  to  take  deposi- 

davits,  &c.     ..  ....  I'l"  11 

tions  m  civil  causes,  which  is  now  possessed  by 
the  circuit  court  of  the  United  States;  and  all 
conmiissioners  who  shall  hereafter  be  appointed 
for  such  purposes  by  the  superior  court  of  any 


TERRITORIAL  COURTS.  247 


A  CT.  1850. 


ers 

r  i'u- 


organized  territory  of  the  United  States,  shall  *^^ 
possess  all  the  powers,  and  exercise  all  the  duties,  J^'"^* 
conferred  by  law  upon  the  commissioners  an-  g'l'vi- 
pointed  by  the  circuit  courts  of  the  United  States 
for  similar  purposes,  and  shall  moreover  exercise 
and  discharge  all  the  powers  and  duties  conferred 
by  this  act  (the  fugitive  slave  act,  so  called).  Ac/, 
1850.  ch.  60,  §  2. 


JURISDICTION 


FEDERAL    COURTS. 


TERRITORIAL    COURTS. 


OREGON. 


Judicial 
power 
how  vest- 
ed. 


The  judicial  power  of  said  territory  shall  be    ^^^^® 
vested  in  a  supreme  court,  district  courts,  probate 
courts,  and  in  justices  of  the  peace. 

The  jurisdiction  of  the  several  courts  herein  Jurisdic- 
provided  for,  both  appellate  and  original,  and  that  raiiy. 
of  the  probate  courts  and  of  justices  of  the  peace, 
shall  be  as  limited  by  law  :  Provided,  that  jus-  or  justices 
tices  of  the  peace  shall  not  have  jurisdiction  of 
any  case  in  Avhich  the  title  to  land  shall  in  any 
wise  come  in  question,  or  where  the  debt  or  da- 
mages claimed  shall  exceed  one  hundred  dollars. 
And  the  said  supreme  and  district  courts,  respec- 
tively, shall  possess  chancery  as  well  as  common 
law  jurisdiction. 


courts. 


250  JURISDICTION  OF  THE  FEDERAL  COURTS. 


ACTV1348        "Writs  of  error,  bills  of  exception,  and  appeals, 
Writs  of    shall  be  allowed  in  all  cases  from  the  final  deci- 


error 


courts. 


whou  lie     sions  of  said  district  courts  to  the  supreme  court, 

to  8upr  me  ■"■ 

court-  under  such  regulations  as  may  be  prescribed  by 
law ;  but  in  no  case  removed  to  the  supreme 
court,  shall  trial  by  jury  be  allowed  by  such  court. 

tiono'fdig.  Each  of  said  district  courts  shall  have  and 
exercise  the  same  jurisdiction  in  all  cases  arising 
under  the  constitution  and  laws  of  the  United 
States,  and  the  laws  of  said  territory,  and  other- 
wise, as  is  vested  in  the  circuit  and  district  courts 
of  the  United  States.     Act,  1848,  ch.  111.  §  9. 

For  appeals  to  supreme  court  of  United  States, 
see  "Supreme  Court,"  page  129. 


MINNESOTA. 


ACT,  1849, 

Judicial 
power 
how  vest- 
ed. 


General 


The  judicial  power  of  said  territory  shall  be 
vested  in  a  supreme  court,  district  courts,  probate 
courts,  and  in  justices  of  the  peace. 

The  jurisdiction  of  the  several  courts  herein 
jarisdic-  providcd  for,  both  appellate  and  original,  and  that 
of  probate  courts,  and  of  justices  of  the  peace, 
Of  jnsticea  shall  bc  as  limited  by  law :  Provided,  that  the  justi- 
ces of  the  peace  shall  not  have  jurisdiction  of  any 
matter  in  controversy  when  the  title  or  bounda- 
ries of  land  may  be  in  dispute,  or  when  the  debt 
or  sum  claimed  shall  exceed  one  hundred  dollars; 
and  the  said  supreme  and  district  courts,  respect- 
ivc'y,  shall  possess  chancery  as  well  as  common 
law  jurisdiction. 


TERRITORIAL  COURTS.  251 


1819. 


Writs  of  error,  bills  of  exceptions  and  appeals   a'^'^^^ 
shall  be  allowed  in  all  cases  from  the  final  deci-  wriisof 

when  he 

yions  of  said  district  courts  to  the  supreme  court,  losupr'mo 


court. 


under  such  regulations  as  may  be  prescribed  by- 
law; but  in  no  case  removed  to  the  supreme 
court,  shall  trial  by  jury  be  allowed  in  said  court. 

Each  of  the  said  district  courts  shall  have  and  juristiic- 

,  •       •     ^•    J'  •  11  '    •  tion  of dis. 

exercise  the  same  jurisdiction  in  all  cases  arising  couns. 
under  the  constitution  and  laws  of  the  United 
States,  as  is  vested   in  the  circuit  and    district 
courts  of  the  United  States  ;  and  the  first  six  days  Prcfer-nre 

of  causes 

of  every  term  of  the  said  courts,  or  so  much 
thereof  as  shall  be  necessary,  shall  be  appropriated 
to  the  trial  of  causes  arising  under  the  said  Con- 
stitution and  laws ;  and  writs  of  error  and  appeals 
in  such  cases  shall  be  made  to  the  supreme  court 
of  said  territory,  the  same  as  in  other  cases.  Act, 
1849,  ch.  121,  §  9. 

For  appeals  to  supreme  court  of  United  States, 
see  "Supreme  Court,"  page  130. 


at  cotn- 
mencem't 
of  term. 


NEW-MEXICO. 


In  respect  to  the  courts  of  this  territory,  there  act,  laso 
is  the  same  enactment  as  for  the  territory  of  j„riI7ic- 
Minnesota,  with  the  following  addition  :  "  And  ^^Z\ilm. 
the  said  supreme  and  district  courts  of  the  said 
territory,  and  the  respective  judges  thereof,  shall  ^'»y  ?>■»" 
and  may  <rTant  writs  of  habeas  corpus  in  all  cases  babens 

^  ■*  corpus. 

in  which  the  same  are  grantable  by  the  judges  of 


252  JURISDICTION  OF  THE  FEDERAL  COURTS. 

ACT,  1S50.   the  United  States  in  the  District  of  Columbia." 
~*       Act,  1850,  ch.  49,  §  10. 

For  appeals  to  supreme  court  of  United  States, 
see  "  Supreme  Court,"  page  131. 

UTAH. 

jurisdic-         Same  enactment  as  for  the  territory  of  New- 
coum  in.    Mexico.     Act,  1850,  ch,  51,  §  9. 

For  appeals  to  supreme  court  of  United  States, 
see  "  Supreme  Court,"  page  130. 


JURISDICTION 


OF    THE 


FEDERAL  COURTS  OF  THE  UNITED  STATES. 


COSTS. 


JURISDICTION 


FEDERAL   COURTS. 


COSTS. 


The  statutes  of  the  United  States,  in  relation  to 
Costs  in  suits  in  the  federal  courts,  and  to  the  Fees 
of  officers  employed  in  those  courts,  are  but  very 
few  in  number;  and  are  scarcely  less  general  in 
their  character,  or  less  indefinite  in  their  details, 
than  they  are  scanty  in  number. 

The  existence  of  costs,  however,  in-  the  federal 
courts,  and  the  right  to  receive  the  same,  are  re- 
cognized generally  by  the  9th,  11th,  20th,  21st, 
22d,  23d  and  35th  sections  of  the  judiciary  act  of 

1789.  The  other  legislative  provisions  which 
have  been  passed,  and  which  have  a  bearing  upon 
this   subject,  are  the  acts  of  1789,   c/i.  21,  §2; 

1790,  c/t.  13;  1791,  cA.  8;  1791,  c/i.  22,  §  1;  1792, 
cA.  36,  §§3,  5,  8;  1793,  ch.  20;  1795,  ch  28; 
1796,  ch.  11;  1796,  ch.  48,  §2;  1799,  ch.  19 ; 
1799,  c/i.  22,  §  71;   1809,  c//.  19;   1813,  eh.  14,   13 


Costs: 
reference 
to  statutes 
concern- 
ing. 


256  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Coiig,;  1814,  c/«.  79;  1815,  c/i.3l,  §  9j  1824,  ch. 
26;  1841,  ch.  35;  ajypro.  act  1842,  ch.  29;  a2J2yro. 
act  1842,  ch  188,  §  7;  and  of  1847,  ch.  55. 
Abstract         rpj^g  followiiiff  is  belleved  to  be  a  correct  ab- 

of  statutes  o 

relating  to  gtract  of  thcsc  acts  : 

costs. 

1789,  Ch.  20.       Sectio7is  9  ant/  11  of  the  judiciary  act  have  re- 

U  ~i\.  ftirence  particularly  to  the  jurisdiction  of  the  fe- 
deral courts ;  and  require  that  the  sum  or  value 
in  dispute,  measuring  their  jurisdiction,  should 
be  estimated  "  exclusive  of  costsJ^ 

^  20.  Section  20  declares  that  in  the  circuit  court,  if 

a  plaintiff  or  a  petitioner  in  equity  recovers  less 
than  five  hundred  dollars;  or  a  libellant,  upon 
appeal,  less  than  three  hundred  dollars  (fifty,  by 
act  of  1803,)  he  shall  not  be  allowed,  but  at  the  dis- 
cretion of  the  court  may  be  adjudged  to  pay  costs. 

§5  21, 22.  Sections  21  and  22  refer  to  appeals,  and  require 
that  the  amount  necessary  to  entitle  a  party  to 
an  appeal  shall  be  sufficient,  "exclusive  of  costs.'*' 

$  23.  Section  23  provides  that  where,  upon  a  writ  of 

error,  the  supreme  or  a  circuit  court  shall  affirm 
a  judgment  or  decree,  they  shall  adjudge  or  de- 
cree to  the  respondent  in  error,  just  damages  for  his 
delay,  and  single  or  double  costs  at  their  discretion. 

$  35.  Section  35  provides  for  the  appointment  of  an 

attorney  of  the  United  States  for  each  district ; 
who  shall  be  entitled  to  receive,  as  a  compensa- 
tion for  his  services,  such  fees  as  shall  be  taxed 
therefor  in  the  respective  courts  before  which  suits  or 
prosecutions  may  be. 


COSTS.  257 

The  act  of  1789,  ch.  21,  §  2,  enacted.  That  until  Attract 

^  '  continued. 

further  provision  shall  be  made,  and  except  where  f,^.  ^^  ^^ 
by  this  act  or  other  statutes  of  the  United  States       — 
is  otherwise  provided,  tlie  rates  of  fees  in  suits  at 
common  law  shall  be  the  same  in  each  state  respectivc- 
li/,  as  arc  now  used  or  allowed  in  the  supreme  courts  of 
the  same;  and  that  in  causes  ofcrpxity  and adndraltrj 
jurisdiction,  the  rates  of  fees  shoidd  be  the  same  as  are 
or  icere  last  allowed  by  the  states  respectively  in  tlie 
court  exercising  supreme  jurisdiction  in  such  cases. 
This  act,  however,  was  limited   in  duration 

1790,  Ch.  13. 

until  the  end  of  the  next  session  of  congress.  At  — 
the  next  session,  in  1790,  it  was  continued  by  the 
act  of  1790,  ch.  13,  until  the  end  of  the  next  ses- 
sion of  congress ;  and  at  the  next  session  in  1791,  ^^^i,^  a 
it  was  further  continued  by  the  act  of  1791,  ch. 
8,  to  the  end  of  the  next  succeeding  session.  This 
last  act  was  afterwards,  and  before  its  expiration, 
repealed  by  the  act  of  1792,  ch.  36. 

At  the  same  session  another  act  was  also  passed,  ''^^'  ^^  ^• 
the  act  of  1791,  ch.  22,  which  provided  specifical- 
ly, to  some  extent,  for  the  compensation  of  attor- 
neys, clerks,  marshals,  jurors,  and  iritnesses.  This 
act  also  was  limited,  as  was  the  last  (ch.  8),  to  the 
end  of  the  next  session  of  congress.  This  act  was 
also  repealed  by  the  next  act,  that  of  1792. 

At  the  next  session  of  congress,  both  of  these  i"^-  f^  3^ 
last  mentioned  acts  were  repealed  by  the  eighth 
section  of  the  act  of  1792,  ch.  36  ;  which,  by  sec- 
tion 3d,  made  a  further  and  fuller  provision  for 

17 


258  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Abstract     fhe  fecs  of  Diarshals.  clerks,  jurors,  loilnesses,  and 

continued. 

1-92,^.  30.  attorneys. 

*  4.  Section  4  also  gave  to  the  marshal  an  allowance 

of  two  and  a  half  per  cent  on  such  amount  as  he 
should  receive  from  the  government,  and  pay  out 
for  court  expenses,  &c. 

^  ^'  Section  5  also  made  provision  for  costs  incurred 

in  prosecutions  for  fines  or  forfeitures. 

This  was  a  permanent  act.  The  third  section, 
however,  was  repealed  by  the  act  of  1799,  ch.  19, 
§  9 :  the  remaining  sections  are  still  in  force. 
The  fourth  section  we  omit,  as  not  being  parti- 
cularly necessary :  the  Ji/th  we  will  give  below, 
when  inserting  the  acts  now  in  force  in  respect 
to  costs. 

i793,^h.  20.  The  next  act,  that  of  1 793,  ch.  20,  made  specific 
provision  for  the  fees  of  counsellors,  attorneys,  clerks 
and  marshals,  in  admiralty  causes,  and  generally 
for  the  compensation  of  parties  obtaining  judg- 
ments in  the  federal  courts. 

1795,  ch.ss.       This,  however,  was  only  a  temporary  act,  and 

was  continued  by  the  acts  of  1795,  ch.  28,  and  of 

1796,  a..  11.   1796^  ch.  1 1,  until  two  years  from  the  31st  March 

1796,  and  to  the  end  of  the  next  session  of  con- 
gress thereafter,  when  it  expired. 
i79f,  ch.48.  The  next  act,  1796,  ch.  48,  §  2,  gave  to  jurors 
and  witnesses  an  additional  compensation  of  fifty 
cents  a  day.  This  was  a  permanent  act,  but  was 
repealed  by  the  act  of  1799,  ch.  19,  §  9. 


COSTS.  259 

The  act  of  1799,  ch.  19,  made  more  ample  pro-  Abstract 

'  '  *         *  continued. 

vision  than  had  been  made  by  any  previous  act,  I'A^^  »« 
for  the  compensation  of /»rt?'s/<«/s,  clerks^  attorncijs^ 
jurors^  witnesses,  and  criers.  This  act  still  remains 
in  force.  We  give  it,  as  far  as  may  be  necessary, 
below.  This  act,  also,  by  §  3,  re-enacted  the  2d 
section  of  the  act  of  1793,  ch.  20,  respecting  clerk's 
fees  in  admiralty. 

The  act  of  1799,  c/l  22,  §  71,  gave  double  costs  1799,  ch.aji 
in  cases  of  nonsuit,  or  of  judgment  in  favor  of  any 
officer  or  other  person,   sued  or  prosecuted  for 
seizing  or  assisting  to  seize  any  goods,  for  viola- 
tions of  the  revenue  laws. 

The  act,  1807,  ch,  19,  merely  provides  that  1s07._ch.19. 
when  a  prosecution  is  commenced  on  account 
of  any  sei/Aire,  and  judgment  is  given  for  any 
claimant,  that  such  claimant  shall  not  be  entitled 
to  costs,  if  there  was  probable  cause  for  the 
seizure. 

The  act  of  1813,  cJi.  14,  provided  that  costs  isis,  ch  h. 
should  be  allowed  in  only  one  action,  when  se- 
veral were  brought,  when  a  single  action  would 
have  been  sufficient ;  and  also  made  provision  for 
the  consolidating  of  actions.  We  give  the  act 
b.'low. 

The  act  of  1814,  ch.  79,  took  away  from  the  1814,  ch.79. 
clerks  and  marshals  of  certain  districts  their  per 
diem  allowance  for  attendance  on  the  courts ;  but 
this  act  was  repealed  by  the  act  of  1S24,  ch.  26. 
It  needs,  therefore,  no  further  notice. 


260  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Abstract         The  act  of  1815,  ch.  31,  6  9,  provides  that  of- 

1615,^.31.  ficers  of  the  customs,  in  any  suit  against  them, 
shall  not  he  liahle  to  costs,  if  there  was  prohahle 
cause  for  doing  the  act  complained  of 

mich.ll-  The  acts  of  1841,  ch.  35,  and  of  1842,  ch.  29, 
limit  the  fees  of  United  States  clerks,  marshals 
and  attorneys,  where  their  entire  compensation 
exceeds  one  thousand  five  hundred  dollars ;  and 
directs  how  salaries  should  he  paid. 

i9i2.c3>.i88.  The  act  of  1842,  ch.  188,  §  7,  gives  the  supreme 
court  power  to  regulate  costs  in  the  circuit  and 
district  courts;  which,  however,  has  never  yet 
heen  done. 

1B47,  ch.55.  The  act  of  1847,  ch.  55j  reduces  the  costs  and 
expenses  of  proceedings  in  admiralty,  against 
ships  and  vessels. 

These  three  last  mentioned  acts  will  be  found 
below. 

foTce^  The  following,  it  is  believed,  is  a  correct  list  of 

such  acts,  or  parts  of  acts,  as  are  now  in  force,  re- 
specting costs,  except  such  as  relate  more  parti- 
cularly to  fees  of  jurors,  witnesses,  &c. :  Act  1789, 
c7i.  20  (the  judiciary  act  so  called,  the  various  sec- 
tions of  which  have  before  been  referred  to  on 
pages  256  and  257) ;  Act  1792,  c7i.  36,  §§  4,  5,  6, 
7,  referred  to  on  page  258  and  on  the  following 
page;  Act  1793,  cL  20,  §  2,  re-enacted  hy  Act 
1799,  ch.  19,  §  3,  referred  to  on  page  259,  and  in- 
corporated in  table  No.  2 ;  Act  1799,  ch.  19,  §§  1, 
3,  4,  6,  7,  8,  referred  to  on  page  259,  and  inserted 


COSTS.  2&1 


i  in 

force. 


hereafter;  Ad  1799,  rh.  22,  §  71,  referred  to  on  f^"^^^^ 
page  259;  Act  1807,  eh.  19,  referred  to  on  page 
259;  Act  1813,  ck  14,  §  1,  2,  3,  hereafter  given; 
Act  1815,  r/^  31,  §  9,  referred  to  on  page  260; 
Act  1841,  ch.  35,  hereafter  given;  Act  1842,  ch, 
29,  hereafter  given;  A<'t  1842,  rV/.  188,  §  7,  here- 
after given ;  and  Act  1847,  c-A.  35,  also  hereafter 
given. 

Act  1792,  ch.36.  As  before  remarked,  the>ur^/i  1:92,^.38. 
section  of  this  gives  a  percentage  to  the  marshal 
for  his  disbursements  in  the  payment  of  court 
expenses,  and  is  not  important  to  our  present 
purpose.  The  sixth  declares  that  fees  shall  be 
collected  as  in  the  several  states ;  and  the  seventh 
prescribes  the  penalty  for  demanding  and  re- 
ceiving unlawful  fees. 

The  fifth  section  is  as  follows  : 

"  In  every  prosecution  for  any  fine  or  forfeiture  when  de- 

/»     1        TT     •        1  CI  fendant  to 

incurred  under  any  statutes  of  the  United  States,  pay  costs. 
if  judgment  is  rendered  against  the  defendant,  he 
shall  be  subject  to  the  payment  of  costs.  And  on 
every  conviction  for  any  other  offence  not  capital, 
the  court  may,  in  their  discretion,  award  that  the 
defendant  shall  pay  the  costs  of  prosecution.  And  informer 

^     •'  .  ■^  wheu  to 

if  any  informer  or  plaintiff,  on  a  penal  statute,  to  pay  coeti. 
whose  benefit  the  penalty  or  any  part  thereof  if 
recovered  is  directed  by  law  to  accrue,  shall  dis- 
continue his  suit  or  prosecution,  or  shall  be  non- 
suit in  the  same,  or  if  upon  trial  the  verdict  shall 
pass  for  the  defendant,  the  court  shall  award  to 


262 


JURISDICTION  OF  THE  FEDERAL  COURTS. 


Acts  iu 
force. 
1792,  Ch  36. 


1799,  Ch   19. 


Fees  of 
clerks. 


District 
attoriK  ys. 


Jarors, 
witnesses 


When  in- 
f(jrrner  to 
pay. 


the  defendant  his  costs,  unless  such  informer  or 
plaintiff  be  an  officer  of  the  United  States  special- 
ly authorized  to  commence  such  prosecution; 
and  the  court  before  whom  the  action  or  informa- 
tion shall  be  tried,  shall,  at  the  trial,  in  open  court, 
certify  upon  record  that  there  was  reasonable 
cause  for  commencing  the  same,  in  which  case 
no  costs  shall  be  adjudged  to  the  defendant." 

This  section  is  amended,  as  to  its  latter  clause, 
by  the  eighth  section  of  the  act  of  1799,  which  is 
hereafter  given. 

Act  1799,  cA.  19.  The  first  section  specifies  the 
fees  of  United  States  marshals.  We  append  them 
in  tabular  form  (No.  3). 

The  third  section  specifies  the  fees  of  the  clerks 
of  the  supreme  court,  and  of  the  circuit  and  dis- 
trict courts  in  common  law  cases ;  and  re-enacts 
the  second  section  of  the  act  of  1793,  ch.  20,  as  to 
the  fees  of  district  clerks  in  cases  of  admiralty. 

These  are  also  annexed  in  tabular  form  (No.  2). 

The  fourth  section  specifies  the  fees  of  United 
States  district  attorneys.  These  are  also  appended 
in  tabular  form  (No.  1). 

The  sixtJi  and  seventh  sections  refer  to  the  com- 
pensation of  jurors,  witnesses,  and  criers  of  courts. 

The  eighth  section  is  an  amendment  of  a  part 
of  the  fifth  section  of  the  act  1792,  ch.  36,  and  is 
as  follows  : 

"If  any  informer  on  a  penal  statute,  and  to 
whom  the   penalty,  or  any  part   thereof,  if  re- 


COSTS.  263 

covered,  is  directed  to  accrue,  shall  discontinue  ^c^u '" 
his  suit  or  prosecution,  or  shall  be  nonsuited  in  i^n  en,  19. 
the  same;  or  if,  upon  trial,  judgment  shall  be 
rendered  for  the  defendant,  unless  such  informer 
be  an  olHcer  of  the  United  States,  he  shall  be 
alone  liable  to  the  clerks,  marshals  and  attorneys, 
for  the  fees  of  such  prosecution ;  but  if  such  in- 
former be  an  officer  whose  duty  it  is  to  commence 
such  prosecution,  and  the  court  shall  certify  there 
was  reasonable  ground  for  the  same,  then  the 
United  States  shall  be  responsible  for  such  fees." 

Section  nine  repeals  the  third  section  of  cJi.  36 
of- 1792,  and  the  second  section  of  c/i.  48  of  1796. 

Act  of  IS  \S,  c//.  14,  jidssed  July  22.    Whenever  isis.ch.  r. 
there  shall  be  several  actions  or  processes  against  when 
persons  who  might  legally  be  joined  in  one  action  oui/one 
or  process,  touching  any  demand  or  matter  in 
dispute  before  a  court  of  the  United  States  or  of 
the  territories  thereof,  if  judgment  be  given  for 
the  party  pursuing  the  same,  such  party  shall  not 
thereon  recover  the  costs  of  more  than  one  action 
or  process,  unless  special  cause  for  several  actions 
or  processes  shall  be  satisfactorily  shown  on  mo- 
tion in  open  court. 

Sec.  2.  Whenever  proceedings  shall  be  had  on  ^^«°  °° 

*^  °  only  one 

several  libels  against  any  vessel  and  cargo,  which  I'l^ei. 
might  legally  be  joined  in  one  libel,  before  a  court 
of  the  United  States  or  of  the  territories  thereof, 
there  sliall  not  be  allowed   thereon  more  costs 
than  on  one  libel,  unless  special  cause  for  libelling 


264  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Acts  in      the  vessel  and  carjro  severally  shall  be  satisfacto- 
1813,  ch.  14.  jjiy  shown  as  aforesaid.     And  in  proceedings  on 
several  libels  or  informations  against  any  cargo 
or  parts  of  cargo  or  merchandize  seized  as  forfeited 
for  the  same  cause,  there  shall  not  be  allowed  by 
the  court  more  costs  than  would  be  lawful  on  one 
libel  or  information,  whatever  may  be  the  number 
of  owners  or  consignees  therein  concerned ;  but 
allowance  may  be  made  on  one  libel  or  informa- 
tion, for  the  costs  incidental  to  several  claims  : 
When        Provided,  That  in  case  of  a  claim  of  any  vessel 
toi)ay()iiiy  or  otlicr  property  seized  in  behalf  of  the  United 
costa.        States,  and  libelled  or  informed  against  as  forfeited 
under  any  of  the  laws  thereof,  if  judgment  shall 
pass  in  favor  of  the  claimant,  he  shall  be  entitled 
to  the  same  upon  paying  only  his  own  costs. 
Courts  Sec.  3.  Whenever  causes  of  like   nature,   or 

Tu\^"u,  ^  relative  to  the  same  question,  shall  be  pending 
prevent,  j^gf^j-g  ^  court  of  the  United  States  or  of  the  ter- 
ritories thereof,  it  shall  be  lawful  for  the  court  to 
make  such  rules  and  orders  concerning  proceed- 
ings therein  as  may  be  conformable  to  the  prin- 
ciples and  usages  belonging  to  courts  for  avoiding 
unnecessary  costs  or  delay  in  the  administration 
of  justice;  and  accordingly  causes  maybe  con- 
solidated, as  to  the  court  shall  appear  reasonable. 
Attornftys   j\^nd  if  auy  attorney,  proctor,  or  other  person  ad- 

wiieii  lia- 
ble to  pay.  rnitted  to  manage  and  conduct  causes  in  a  court 

of  the  United  States,  or  of  the  territories  thereof, 

shall  appear  to  have  multiplied  the  proceedings 


COSTS.  265 

in  any  cause  before  the  court,  so  as  to  increase  ^^tB  in 

•'  lorco. 

costs  unreasonably,  such  person  may  be  required, 
by  order  of  court,  to  satisfy  any  excess  of  costs  so 
incurred. 

Act  of  1841,  ch.  35.     So  far  as  this  act  refers  to  is4i.  cb.35. 
costs,  is  as  follows;  • 

Hereafter,  in  lieu  of  all  fees,  emoluments,  and  Fees  of 

attorneys. 

receipts,  now  allowed  in  districts  where  the  pre-  marshals, 

and  clerks 

sent  entire  compensation  of  any  of  the  officers  wheu 

compeusa- 

hercinaftcr  named  shall  exceed  the  sum  of  one  tion  ex 

cecds 

thousand  five  hundred  dollars  per  annum,  it  shall  $1500  per 

auuum. 

and  may  be  lawful  for  the  United  States'  clerks, 
attorneys,  counsel  and  marshals,  in  the  district 
and  circuit  courts  of  the  United  States  in  the 
several  states,  to  demand  and  receive  the  same 
fees  that  now  are,  or  hereafter  may  be,  allowed 
by  the  laws  of  the  said  states  respectively  where 
said  courts  are  held,  to  the  clerks,  attorneys  and 
counsel,  and  sheriffs,  in  the  highest  courts  of  the 
said  states  in  which  like  services  are  rendered ; 
and  no  other  fees  or  emoluments,  except  that  the 
marshals  shall  receive  in  full,  for  summoning-  all 
the  jurors  for  any  one  court,  thirty  dollars ;  and 
shall  receive,  for  every  day's  actual  attendance  at 
any  court,  five  dollars  per  day;  and  for  any  ser- 
vices, including  the  compensation  for  mileage 
performed  by  said  officers  in  the  discharge  of 
their  official  duty,  for  which  no  compensation  is 
provided  by  the  laws  of  said  states  respectively, 
the  said  officers  may  receive  such  fees  as  are  now 


266  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Acts^in  allowed  by  law  according  to  the  existing  usage 
1841,^.35.  g^jjj  practice  of  said  courts  of  the  United  States; 
and  every  district  attorney,  except  the  district 
attorney  of  the  southern  district  of  IN ew- York, 
shall  receive,  in  addition  to  the  above  fees,  a 
sakiy  of  two  hundred  dollars  per  annum:  Pro- 
vided, that  the  fees  and  emoluments  retained  by 
the  district  attorneys,  marshals  and  clerks,  exclu- 
sive of  any  reasonable  compensation  to  their  de- 
puties, to  be  allowed  in  their  accounts  by  the 
courts  of  the  respective  districts  to  which  they 
belong,  and  after  the  payment  of  such  necessary 
office  and  other  expenses  as  shall  be  allowed  by 
the  secretary  of  the  treasury,  not  to  exceed,  as  to 
any  one  of  the  said  offices  in  the  southern  district 
of  New- York,  the  sum  of  three  thousand  dollars 
per  annum,  and  in  any  other  district  the  sum  of 
one  thousand  dollars  per  annum,  shall  in  no  case 
exceed,  for  the  district  attorneys  and  the  marshals, 
or  either  of  them,  the  sum  of  six  thousand  dol- 
lars for  each ;  and  those  for  each  of  the  clerks 
shall  not  exceed,  in  any  case,  four  thousand  five 
hundred  jdollars ;  the  overplus  of  fees  and  emolu- 

The  over-  •  '  ^ 

plus  to  be  ments  to  be  paid  into  the  public  treasury,  under 
the  trca-     such  rules  and  regulations  as  may  be  prescribed 

sury.  °  J  I 

by  the  secretary  of  the  treasury,  subject  to  the 

disposition  of  congress. 

Act  of  1842,  ch.  29.     This  act,  so  far  as  it  refers 
fe™°o?dis.  to  costs,  is  as  follows : 
SS       "No  district  attorney  shall  be  allowed  by  the 

clerks,  &c. 


ISl",  Cb.  29. 


COSTS.  267 

said  secretary  of  the  treasury,  to  retain  of  the  fees  f^^'J° 
and  emoluments  of  his  said  office,  for  his  own  ''^-'-^  » 
personal  compensation,  over  and  above  his  ne- 
cessary office  expenses,  the  necessary  clerk  hire 
included,  to  be  audited  and  allowed  by  the  proper 
accounting  officers  of  the  treasury,  a  sum  exceed- 
ing six  thousand  dollars  per  year,  and  at  and 
after  that  rate,  for  such  time  as  he  shall  hold  the 
office ;  and  no  clerk  of  a  district  court,  or  clerk 
of  a  circuit  court,  shall  be  allowed  by  the  said 
secretary,  to  retain  of  the  fees  and  emoluments  of 
his  said  office,  or  in  case  both  of  the  said  clerk- 
ships shall  be  held  by  the  same  person,  of  the  said 
offices,  for  his  own  personal  compensation,  over 
and  above  the  necessary  expenses  of  his  office, 
and  necessary  clerk  hire  included,  also  to  be  au- 
dited and  allowed  by  the  proper  accounting  offi- 
cers of  the  treasury,  a  sum  exceedmg  three  thou- 
sand five  hundred  dollars  per  year,  for  any  such 
district  clerk,  or  a  sum  exceeding  twenty-five 
hundred  dollars  per  year,  for  any  such  circuit 
clerk,  or  at  and  after  that  rate,  for  such  time  as 
he  shall  hold  the  office ;  and  no  marshal  shall  be 
allowed  by  the  secretary,  to  retain  of  the  fees  and 
emoluments  of  his  said  office,  for  his  own  per- 
sonal compensation,  over  and  above  a  proper 
allowance  to  his  deputies,  which  shall  in  no  case 
exeed  three-fourths  of  the  fees  and  emoluments 
received  as  payable  for  the  services  rendered  by 
the  deputy  to  whom  the  allowance  is  made,  and 


268  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Acts  in      niay  be  reduced  below  that  rate  by  the  said  secre- 

force.  "^ 

1842,  ch  29.  tary  of  the  treasury,  whenever  the  return  shall 
show  that  rate  of  allowance  to  be  unreasonable, 
and  over  and  above  the  necessary  office  expenses 
of  the  said  marshal,  the  necessary  clerk  hire  in- 
cluded, also  to  be  audited  and  allowed  by  the 
proper  accounting  officers  of  the  treasury,  a  sum 
exceeding  six  thousand  dollars  per  year,  or  at  and 
after  that  rate,  for  such  time  as  he  shall  hold  the 
Surplus  to  office ;  and  every  such  officer  shall,  with  each 
into  the     return  made  by  him,  pay  into  the  treasury  of  the 
&c.       '   United  States,   or  deposit  to  the  credit  of  the 
treasurer  thereof,  as  he  may  be  directed  by  the 
secretary  of  the  treasury,  any  surplus  of  the  fees 
and   emoluments  of  his  office,   which  his  half 
yearly  return  so  made  as  aforesaid  shall  show  to 
exist  over  and  above  the  compensation  and  allow- 
ances hereinbefore  authorised  to  be  retained  and 
paid  by  him.     And  in  every  case  where  the  re- 
turn of  any  such  officer  shall  show  that  a  surplus 
may  exist,  the  said  secretary  of  the  treasury  shall 
cause  such  returns  to  be  carefully  examined,  and 
the  accounts  of  disbursements   to  be  regularly 
audited  by  the  proper  officers  of  his  department, 
and  an  account  to  be  opened  with  such  officer  in 
proper  books  to  be  provided  for  that  purpose,  and 
the  allowances  for  personal  compensation  for  each 
calendar  year  shall  be  made  from  the  fees  and 
diemTobe  cmolumcnts  of  that  year,   and  not  otherwise: 
And  2)rovided,  further,  That  nothing  in  any  exist- 


inado  in 

certain 

cases. 


COSTS.  269 

ing  law  of  congress,  authorizing  the  payment  a^^^^»° 
of  a  per  diem  compensation  to  a  district  attor-  ^'--^'^^■^■ 
ney,  clerk  of  a  district  court,  or  clerk  of  a  circuit 
court  or  marshal,  or  deputy  marshal,  for  atten- 
dance upon  the  district  or  circuit  courts  during 
their  sittings,  shall  be  so  construed  as  to  autho- 
rize any  such  payment  to  any  one  of  those  officers 
for  attendance  upon  either  of  those  courts,  while 
sitting  for  the  transaction  of  business  under  the 
bankrupt  law  merely,  or  for  any  portion  of  the 
time  for  which  either  of  the  said  courts  may  be 
held  open,  or  in  session  by  the  authority  conferred 
in  that  law;  and  no  such  charge  in  an  account 
of  any  such  officer,  shall  be  certified  as  payable, 
or  shall  be  allowed  and  paid  out  of  the  money 
hereinbefore   appropriated  for  defraying  the  ex- 
penses of  the  courts  of  the  United  States,  unless 
such  district  attorney,  clerk  or  marshal,  shall  be 
required  by  the  judge  of  said  court  or  the  solici- 
tor of  the  treasury,  to  attend  the  sessions  of  the 
same,  and  shall  actually  attend  for  the  perfor- 
mance of  the  duties  of  his  said  office.     And  no 
per  diem  or  other  allowance  shall  be  made  to 
any  such  officer  for  attendance  at  rule  days,  of 
the  circuit  or  district  courts,  and  when  the  circuit 
and  district  courts  sit  at  the  same  time,  no  greater 
per  diem  or  other  allowance  shall  be  made  to  any 
such  olhcer  than  for  an  attendance  on  one  court:  JJf^^J^'i^. 
And  proviiJcd  furtficr,  that  the  district  attorney,  em  and 

■t  -^  '  ■'       smilhern 

marshal,  clerk  of  the  circuit  court  and  clerk  of  i'*»'-'^^»"J 

'  New- York 


270  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Acuin  the  district  court  of  the  United  States  for  the 
)&i24cii.29.  northern  and  southern  districts  of  New-York, 
shall  not  hereafter  receive  any  greater  or  other 
fees  or  emoluments,  including  fees  and  emolu- 
ments, under  the  act  entitled  "  An  act  to  esta- 
blish a  uniform  system  of  bankruptcy  throughout 
the  United  States,"  for  services  rendered  by  them, 
respectively  in  the  said  courts,  than  now  are  or 
hereafter  may  be  allowed  by  the  laws  of  the  state 
of  New- York  to  attorneys,  solicitors,  counsel, 
sheriffs  and  clerks,  in  the  highest  courts  of  law 
or  equity,  of  original  jurisdiction,  of  the  state  of 
New- York,  according  to  the  nature  of  the  pro- 
ceedings, for  like  services  rendered  therein :  Pro- 
vided, That  no  part  of  the  fund  hereby  appro- 
priated, shall  be  applied  unless  in  addition  to  the 
certificates  now  required  by  law,  the  clerk  of  the 
said  court  shall  certify  in  his  official  capacity, 
that  the  services  have  been  rendered,  and  the 
supplies  furnished  for  and  used  by  the  court,  and 
that  the  charges  therefor  were  legal  and  proper." 
The  provisions  and  requirements  of  this  section 
are  referred  to,  and  made  permanent  by  the  acts 
of  1843,  di.  100,  vol.  5,  Stat,  at  Large,  p.  639;  of 
1844,  ch,  105,  vol.  5,  Stat,  at  Large,  p.  690;  and 
of  1845,  ch.  71,  vol.  5,  Stat,  at  Large,  p.  764. 

The  salaries  of  the  clerks  of  the  circuit  and 
district  courts,  are  also  made  the  same  in  amount 
by  the  act  of  1849,  ch,  100. 


COSTS.  271 

Act,  1842,  ch.  188,  §  7.     This  section,  giving  to  ^c^^y° 
the  supreme  court  power  to  regulate  costs,  is  as  i842^.i88. 

folloWS(l):  Sapreme 

^    '  court  may 

"  For  the  purpose  of  further  diminishin^f  the  ™^ke 

^       ^  "  rules  as  to 

costs  and  expenses  in  suits  and  proceedings  in  taxation  of 
the  federal  courts,  the  supreme  court  shall  have 
full  power  and  authority,  from  time  to  time,  to 
make  and  prescribe  regulations  to  the  district  and 
circuit  courts,  as  to  the  taxation  and  payment  of 
costs  in  all  suits  and  proceedings  therein;  and 
to  make   and  prescribe  a  table   of  the  various 
items  of  costs  which  shall  be  taxable  and  allow- 
ed in  all  suits  to  the  parties,  their  attorneys,  soli- 
citors and  proctors,  to  the  clerk  of  the  court,  to  the 
marshal  of  the  district,  and  his  deputies,  and  other 
officers  serving  process,  to  witnesses,  and  to  all 
other  persons  Avhose  services  are  usually  taxable 
in  bills  of  costs.     And  the  items  so  stated  in  the 
said  table,  and  none  others,  shall  be  taxable  or 
allowed  in  bills  of  costs ;  and  they  shall  be  fixed 
as  low  as  they  reasonably  can  be,  with  a  due 
regard  to  the  nature  of  the  duties  and  services, 
which  shall  be  performed  by  the  various  officers 
and  persons  aforesaid,  and  shall,  in  no  case  ex- 
ceed the   costs  and   expenses  now   authorized, 
where  the  same  are  provided  for  by  existing  laws. 

Act,  1847,  ch.  55.     This  act  provides  that  the  1&17, chm 

— — .    Costs  on 

(1)  Thus  far,  no  action  has   been   taken  by  the   supreme  ° 

court  under  tlic  power,  and  for  the  purposes  specified  in  this 
act. 


272  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Acts  in      marshal  shall  stay  execution  in  admiralty  cases 

torce.  "'  •' 

1847,^.  55.  and  discharge  the  property  arrested,  on  receiving 
of  proper-  suitable  bond  and  security  from  the  claimant  to 

ty  HI  aumi-  _ 

r'Uycases.  abide  tlic  dccrcc  of  the  court,  and  has  also  the 
following  proviso :  "  That  the  entire  costs  in  any 
such  case,  in  which  the  amount  recovered  by  the 
libellant  shall  not  exceed  one  hundred  dollars, 
shall  not  be  more  than  fifty  per  cent  of  the  amount 
recovered  in  the  same,  which  costs  shall  be  ap- 
plied first  to  the  payment  of  the  usual  fees  for 
witnesses,  and  the  commissioner,  where  a  com- 
missioner shall  act  in  the  case,  and  the  residue 
to  be  divided  pro  rata  between  the  clerk  and  mar- 
shal, under  the  direction  of  the  judge  of  the  court 
where  the  cause  may  be  tried  :  Provided  Jw^ther, 
That  no  attorney's  or  proctor's  fees  shall  be  al- 
lowed or  paid  out  of  the  said  costs." 

In  what         From  the  above  acts,  which,  we  believe,  are 

cases  sta- 
tutes ap-     all  that  apply  particularly  to  costs,  except  those 

ply. 

which  define  and  regulate  the  compensation  and 
fees  of  jurors,  witnesses,  criers,  &c.,  it  will  be  seen 
that  they  generally  apply  only  to  officers  proper  of 
the  federal  courts,  such  as  the  district  attorneys, 
clerks  and  marshals, 
parties!*  As  to  what  and  how  much  compensation  (1) 
shall  be  taxed  or  allowed  in  the  federal  courts,  in 

(1)  Where  neither  the  laws  of  a  state,  nor  the  acts  of  Con- 
gress provide  for  the  allowance  of  any  particular  item  of  costs, 
it  is  to  be  taxed  only  when  relating  to  the  competent  evidence 
in  the  case,  and  connected  with  what  is  appropriately  a  matter, 


COSTS.  273 


favor  of  parties  obtaining  judgments  therein,  or  cosu  to 
in  favor  of  those  who  may  be  entitled  to  costs  in 


of  cost  rather  than  damages  and  expenses  in  preparing  a  cause. 
Hathaway  vs.  Roach,  2  Woods  and  Meir,  63. 

In  a  cause  wliicli  was  argued  on  the  question  of  costs,  Mr. 
Justice  Story  held  that  costs  rested  in  the  sound  discretion  of 
the  court ;  but  that  such  a  discretion  was  a  sound  one,  to  be 
exercised  upon  principle,  and  with  a  reference  to  the  general 
rules  of  practice.     Brooks  vs.  Bijam,  2  Story,  553. 

In  the  ordinary  course  of  practice,  when  a  bill  is  dismissed, 
costs  are  not  awarded  to  the  defendant.     Ibid. 

When  a  bill  is  dismissed  on  account  of  ihe  want  of  jurisdic- 
tion over  the  person,  no  costs  are  allowed.  Burnhain  vs.  Ran- 
gcley,  2  Wood  and  Min,  415. 

Where  a  bill  might  be  demurred  to,  but  answer  is  put  in, 
and  the  bill  is  dismissed  on  its  merits,  because  the  plaintiff  does 
not  show  sufficient  title,  the  defendants  are  not  entitled  to  costs. 
Brooks  vs.  Byam,  2  Story,  553. 

A  complainant  residing  in  another  state,  but  in  the  same 
circuit,  is  not  bound  to  give  security  for  costs,  except  at  the 
first  terra.     Foster  vs.  Swazey,  2  Wood  and  Min,  217. 

But  if  the  defendant  do  not  demand  security  for  costs  within 
a  reasonable  time,  it  shall  not  be  ground  for  a  continuance 
that  such  security  has  not  been  given  when  the  cause  is  called 
for  trial.     Hawkins  vs.  Willbank,  4  Wash.  285. 

In  the  first  circuit  the  practice  in  patent  cases  has  been,  not 
to  require  the  plaintiff  to  give  security  for  costs.  Woodwarth 
vs.  Sherman,  3  Story,  171. 

When  a  court  will  set  aside  a  dismission  of  a  cause  \%'ithout 
costs,     harming  vs.  Dolph.,  4  Wash.  624,  630. 

If  the  court  had  jurisdiction  of  the  cause,  when  the  action 
was  commenced,  the  repeal  of  the  law  giving  the  jurisdiction, 
docs  not  take  away  the  plaintiff's  right  to  costs.  Walker  vs. 
Smith,  1  Wash.  202. 

18 


274  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Costs  to     any  proceedings  in  such  courts,  for  their  travel 
and  attendance ;  or  what  shall  be  the  fees  and 


"Wliere  three  attorneys  appear  for  a  defendant,  to  suits  insti- 
tuted against  him,  and  all  are  called  upon  and  act,  but  no  war- 
rant of  attorney  is  given  to  either  ;  the  attoraey's  fee  is  to  be 
equally  divided  betw^een  them.  Hurst  vs.  Durnell,  1  Wash. 
438. 

Where  a  cause  is  removed  from  a  state  c'ourt  into  the  cir- 
cuit court,  under  the  12th  section  of  the  act  of  1789,  ch.  20,  the 
plaintiif  is  entitled  to  costs,  although  he  has  a  verdict  for  less 
than  five  hundred  dollars.     Ellis  vs.  Jarvis,  3  Mason,  457. 

In  an  action  at  common  law,  or  one  arising  under  the  con- 
stitution or  laws  of  the  United  States,  if  a  plaintiff  recovers 
less  than  five  hundred  dollars,  he  does  not  recover  costs  but 
may  be  adjudged  to  pay  them.  Kneass  vs.  The  Schuylkill 
Bank,  4  Wash.  106  :  under  the  20th  section  of  the  judiciary 
act. 

Query  ?  Whether  if  in  a  patent  cause,  the  plaintiff  recover 
five  hundred  dollars,  he  is  entitled  to  costs.     Ibid. 

Where  the  plaintiff  prevails  in  an  action,  the  court  will  not, 
in  the  exercise  of  their  discretion,  tax  the  costs  against  him, 
where  he  might  naturally  and  fairly  suppose  he  was  entitled  to 
recover  more  than  five  hundred  dollars.  Cottle  vs.  Payne,  3 
Day,  289. 

A  party  who  obtains  a  continuance  of  a  cause  must  pay  the 
costs  of  the  term.     Patton^s  Lessee  vs.  Blockwell,  2  Overt.  114. 

It  is  the  common  practice  not  to  allow  costs  to  the  prevail- 
ing party,  where  the  district  judge  differs  from  the  circuit 
judge.     Veazie  vs.  Williams,  3  Story,  612. 

If  a  consul,  who  sues  for  a  penalty  in  his  own  name,  but  for 
the  benefit  of  the  United  States,  is  liable  to  costs.  Query  ? 
Levy  vs.  Burley,  2  Sum.  355. 

In  admiralty  costs  and  expenses  are  not  matters  positively 
limited  by  law,  but  are  allowed  in  the  exercise  of  a  sound  dis- 
cretion of  the  court.     Canter  vs.  Amer.  and  Ocean  Ins.  Com 


COSTS.  275 

compensation  of  counsel,  attorneys,  proctors  and  ^"su  to 
advocates,  in  private  suits  prosecuted  in  the  United 
States  courts,  the  statutes  are  mainly  silent ;  the 
only  acts  ever  passed,  which  referred  directly  to 
such  fees  and  costs,  being  those  of  1789,  ch.  21, 
§  2,  and  1792,  cli.  20,  §  4,  both  of  which  have  long 
since  expired(l). 


3  Pet.  319.  Sec  also,  Dun.  Aim.  Practice,  2d  Ed.  109,  215, 
261,  et  alia.      Conk.  Adm.  Prac.  771  to  780. 

See  also  Bonne's  Lessee  vs.  Brown,  2  Wash.  271.  The 
Langdon  Cheeves,  2  Mason,  58.  The  Ulpiana,  1  Mason,  91. 
Ship  Packet,  3  Mason,  334.  Croshy  vs.  Folger,  1  Sum.  514. 
Whipjdc  vs.  CumherJand  Cotton  Co.,  3  Story,  84.  Scriha  vs. 
Deancs,  1  Mar.  Dec.  166.  The  Hiram,  2  Gall.  60.  The 
Louisetta,  Ibid,  307.  Oioings  vs.  Tiernan,  10  Pet.  447.  Lan- 
ing  vs.  Dolph,  4  Wash.  630.  Willings  vs.  Consequa,  1  Pet. 
C.  C.  301.  Den.  vs.  Bacon  et  al.  4  Waah.  578.  Boicne's  Les- 
see vs.  Arbuncle,  1  Pet.  C.  C.  234. 

See  also,  "  Supreme  Court,"  note  to  Rule  45. 

Under  the  act  of  1842,  ch.  29,  it  has  been  held,  in  reference 
to  the  fees  of  clerks  of  the  United  States  courts,  that  where 
the  two  offices  of  circuit  and  district  clerk  are  held  by  one  per- 
son, he  is  entitled  to  the  compensation  given  to  each ;  and  that 
where  his  fees  as  district  clerk  amount  to  more  than  thirty-five 
hundred  dollars,  and  his  fees  as  circuit  clerk  to  less  than  twenty- 
five  hundred  dollars  (their  compensation  is  now  equal)  he  is 
entitled  to  the  first  mentioned  sum  as  district  clerk,  and  to  the 
actual  fees  as  circuit  clerk.     U.  States  vs.  Bassett,  2  Story,  389. 

(1)  Compensation  to  jurors  and  witnesses  is  ^gulated  by  the 
sixth  section  of  the  act  of  1799,  ch.  19,  at  the  rate  of  one  dol- 
lar and  twenty-five  cents  for  each  day  they  shall  attend  in 
court ;  and  for  travelling,  at  the  rate  of  five  cents  per  mile, 
from  their  respective  places  of  abode,  to  the  place  where  the 
court  is  holden,  and  the  like  allowance  for  returning. 


276  JURISDICTION  OF  THE  FEDERAL  COURTS. 

The  rules  of  the  federal  court  are  hardly  more 
explicit. 

The  supreme  court,  however,  have  regulated, 
to  some  extent,  costs  in  suits  brought  before  it  by 
the  following  rule  : 

Rule  45. 
Supreme         "  In  all  cases  where  any  suit  shall  be  dismissed, 

court  rule 

No.  45.  in  this  court,  except  where  the  dismissal  shall  be 
for  want  of  jurisdiction,  costs  shall  be  allowed  for 
the  defendant  in  error,  or  appellee,  as  the  case 
may  be,  unless  otherwise  agreed  by  the  parties. 

"In  all  cases  of  affirmance  of  any  judgment  or 
decree  in  this  court,  costs  shall  be  allowed  to  the 
defendant  in  error  or  appellee,  as  the  case  may 
be,  unless  otherwise  ordered  by  the  court. 

"  In  all  cases  of  reversals  of  any  judgment  or 
decree  in  this  court,  except  where  the  reversal 
shall  be  for  want  of  jurisdiction,  costs  shall  be 
allowed  in  this  court  for  the  plaintiff  in  error  or 
appellant,  as  the  case  may  be,  unless  otherwise 
ordered  by  the  court. 

"  Neither  of  the  foregoing  rules  shall  apply  to 
cases  where  the  United  States  are  a  party ;  but 
in  such  cases,  no  costs  shall  be  allowed  in  this 
court  for  or  against  the  United  States. 

"  In  all  cases  of  the  dismissal  of  any  suit  in  this 
court,  it  shall  be  the  duty  of  the  clerk  to  issue  a 
mandate,  or  other  proper  process  in  the  nature  of 
a  procedendo,  to  the  court  below,  for  the  purpose 
of  informing  such  court  of  the  proceedings  in  this 


COSTS.  277 

court,  so  that  further  proceedings  may  be  had  in  s.  c.  Rule 
such  court  as  to  law  and  justice  may  appertain. 

"  When  costs  are  allowed  in  this  court,  it  shall 
be  the  duty  of  the  clerk  to  insert  the  amount 
thereof  in  the  body  of  the  mandate,  or  other  pro- 
per process,  sent  to  the  court  below,  and  annex  to 
the  same  the  bill  of  items  taxed  in  detail."  (See 
Rules  21  and  37.) 

Costs  in  suits  in  equity  have  also  been  made  the  in  equity 
subject  of  one  of  the   rules  prescribed  by  the 
supreme  court  for  the  government  of  the  federal 
courts  in  equity  cases,  as  follows  : 

Rule  25. 

"  In  order  to  prevent  unnecessary  costs  and  ex-  Equity 
penses,  and  to  promote  brevity,  succinctness,  and  S.^ 
directness  in  the  allegations  of  bills  and  answers, 
the  regular  taxable  costs  for  every  bill  and  answer 
shall  in  no  case  exceed  the  sum  which  is  allowed 
in  the  state  court  of  chancery  in  the  district,  if 
any  there  be ;  but  if  there  be  none,  then  it  shall 
not  exceed  the  sum  of  three  dollars  for  every  bill 
or  answer." 

This  rule  was  promulgated  in  1842 ;  and  has  construc- 

-,  11.  -,  ,  tionofthis 

been  regarded,  m  cases  where  the  question  of  its  r"ie- 
construction  and  of  its  meaning  has  come  before 
any  of  the  federal  courts,  as  adopting  the  fee  bill 
of  the  highest  court  of  any  state,  as  such  fee  bill 
existed  in  1842;  and  it  has  also  been  held  that 
changes  and  alterations  which  may  have  been 
made  since  1842  in  any  such  fee  bills,  by  a  change 


278  JURISDICTION  OF  THE  FEDERAL  COURTS. 


Construe-   of  law  or  practice  in  any  such  state,  did  not  apply 

tion  of  the  •         •       ji        n    i  i  , 

25ihruie.    to  or  govcm  the  practice  in  the  lederal  courts. 

This  construction  has  lately  been  sustained  by 
Mr.  Justice  Nelson,  in  the  case  of  an  appeal  from 
the  taxation  of  costs  by  the  clerk  of  the  circuit 
court  for  the  northern  district  of  New- York.  The 
plaintiff  had  charged  by  the  folio  for  the  draft  and 
copies  of  his  bill  of  complaint,  according  to  the 
Revised  Statutes  of  New- York  and  the  fee  bill  of 
1842,  when  the  equity  rules  were  adopted.  The 
defendant  claimed  that  the  only  charge,  which 
could  be  made,  was  either  $3-00  under  the  25th 
equity  rule,  or  the  amount  now  allowable  under 
the  Code  (passed  1849).  The  court  held  that  the 
true  rule  was  to  tax  under  the  New- York  chancery 
fee  bill,  as  it  existed  in  1842.  IVade  vs.  Mathews, 
Mass.  June  30,  1851. 

The  facts  in  this  last  mentioned  case  were 
briefly  as  follows :  Wade  had  filed  his  bill  against 
Mathews,  and  taken  a  default  according  to  the 
general  rules  in  equity,  for  want  of  an  answer. 
The  defendant,  on  motion,  obtained  an  order 
vacating  the  default,  with  permission  to  file  his 
answer  upon  payment  of  all  the  costs  in  the  suit. 

The  measure  of  costs  in  equity  cases  may  there- 
fore be  considered  as  established,  at  least  partially, 
in  those  states  in  which  there  was  existing  in 
1842  any  recognized  fee  bill.  In  other  states,  a 
quantum  meruit  principle  must  almost  necessarily 
be  adopted. 


COSTS.  279 

The  bill  of  costs  referred  to  as  taxed  by  Mr. 
Justice  Nelson  in  the  case  of  Wade  vs.  Mathews, 
is  hereto  aiinexed(5)  as  a  guide  and  precedent  in 
cases  in  equity.  We  append  also(6)  a  copy  of  a 
bill  of  costs  in  a  case  at  law,  as  taxed  by  the  clerk 
of  the  district  court  for  the  southern  district  of 
New- York. 

In  cases  at  law.  there  is  neither  statutory  enact-  i"  cases  at 

law. 

ment,  nor  any  rule  of  court  in  respect  to  costs, 
unless  we  except  the  rules  of  particular  districts 
and  circuits,  which  are  of  course  entirely  local  in 
their  authority. 

It  has,  however,  been  the  uniform  practice  for  Practice 

1,1/.  11  .,,  in  such 

more  than  halt  a  century,  that  the  prevaihng  cases. 
party  in  civil  actions  in  the  federal  courts  should 
recover  costs  to  some  extent  or  other.  His  risfht 
to  such  a  recovery  is  recognized,  as  we  have  seen, 
by  general  provisions  of  law ;  and  it  is  further 
strengthened  by  some  of  the  rules  of  the  supreme 
court,  and  also  by  various  decisions.  Bonne's 
Lessee  vs.  Brmvn^  2  Wash.  271.  Seahring's  Les- 
sees vs.  WanJ^  4  Wash.  546.  And  as  a  general 
rule,  fees  for  attendance  and  attorneys  have  been 
allowed  or  Avithheld,  as  the  state  laAvs  or  the 
highest  courts  under  them  have  been  accustomed 
to  withhold  or  allow  them. 

In  New- York  it  has  b^en  the />;'«<?^/<?^,  sanction- 
ed, it  is  understood,  by  Mr.  Justice  Nelson,  to 
adopt  the  fee  bill  existing  in  1842,  as  furnishing 
a  reasonable  compensation  for  services  in  the 
United  States  courts. 


280  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Practice         In  a  case  which  came  before  the  late  Justice 
caaes'^^'      WooDBURY   ill  l846,  upon  objcctions  to  certain 
items  of  costs,  which  had  been  objected  to,  but 
were  retained   by  the  clerk,   the  learned  judge 
examined  the  law  and  practice  in  regard  to  costs, 
and   sustained  the  above  positions,  though  un- 
decided as  to  what  particular  laws  under  which 
the  general  practice  had  grown  up  or  was  to  be 
justified.     He  held  also  that  the  practice,  in  re- 
spect to  costs,  could  not  be  justified  under  the  acts 
of  congress  in  relation  to  process ;  but  that  the 
34th  section  of  the  act  of  1789,  settling  the  rights 
of  parties  in  the  courts  of  the  United  States,  by 
the  laws  of  the  states,  when  not  provided  for  by 
congress  specially,  was  broad  enough  to  cover  the 
rights  of  parties  as  to  costs.  IlaiJiaivay  vs.  Roach., 
2  Wood  &  Min.  63. 
Decision         There  are,  however,  one  or  two  errors  of  fact  in 
HaSiaway  thc  opiuiou  of  that  Icamcd  judge,  in  the  above 
rwood^&  cited  case,  which  it  may  be  well  to  notice  in  this 

Mill.  63, 

referred  to    COUneXlOn. 

meliteTou  In  alludlug  to  the  act  of  March  1,  1793,  ch.  20, 
which  was  to  be  in  force  for  only  one  year,  and 
until  the  end  of  the  next  session  of  congress  there- 
after, Mr.  Justice  Woodbury  remarks  that  it  was 
not  extended  or  revised  till  by  the  act  of  March 
31,  1796,  when  it  was  continued  for  two  years. 
It  was  continued,  however,  by  the  act  of  1795,  ch. 
28,  passed  Feb.  25,  and  before  it  (the  act  of  1793) 
had  expired,  for  one  year  from  the  date  of  that  act. 


COSTS.  28 1 

Feb.  25,  1795,  and  until  the  end  of  the  next  session  pecisi..n 

'  '  111  case  01 

of  congress ;  and  then  by  the  after  act  of  1 796,  con-  J.|,=^'[^';;;;j;f 
tinned  for  two  years  longer.  The  act  of  1793  was 
therefore   a   continuing  and  valid  act,  until   it 
expired  by  the  limitation  of  the  act  of  1796. 

The  learned  judge  further  says  :  "  When  the 
act  of  February  28th,  1799,  was  passed,  it  omitted 
in  terms  to  make  this  provision  perpetual."  (The 
provision  referred  to  is  the  one  found  in  the  4th 
section  of  the  act  of  1793,  ch.  20,  which  gave  "in 
favor  of  parties  obtaining  judgments"  in  the  courts 
of  the  United  States,  such  compensation  "for 
their  travel  and  attendance,"  and  for  attorney's 
and  counsellor's  fees,  as  were  given  in  the  supreme 
or  superior  courts  of  the  respective  states.)  "  But 
it  was  probably  designed  to  make  the  act,  as  an 
act,  perpetual ;  because  it  expressly  repealed  the 
third  section  of  it." 

The  natural  and  only  inference  to  be  drawn 
from  this  language  is,  that  the  act  of  February 
28th,  1799,  repealed  a  part  (the  third  section)  of 
the  act  of  March  1st,  1793;  and  thereby  virtually 
re-enacted  the  rest  of  that  act,  and  made  "  the  act 
as  an  act  perpetual."  A  careful  examination  and 
comparison  of  the  several  statutes  Avill  show, 
however,  that  the  act  of  1799  did  not  refer  at  all 
to  the  act  of  1793;  and  that  it  repealed  the  third 
section  of  the  act  of  1792,  c!i.  36,  instead  of  the  third 
section  of  the  act  of  1793,  ch.  20. 


232  JURISDICTION  OF  THE  FEDERAL  COURTS. 


The  conclusion,  therefore,  that  the  act  of  1793 
was  intended  to  be  made  perpetual,  because  a 
section  of  it  was  expressly  repealed,  is  incorrect; 
since  that  act  (1793)  has  not  been  the  subject  of 
any  legislation  since  it  expired,  nor  been  referred 
to  in  any  succeeding  acts(l). 


(1.)     DISTRICT  ATTORNEYS. 

Fees  of       YoY  eacli  day  which  any  sucli  attorney  shall  ne- 
Attonieys.       cessarily  attend  on  bnsiness  of  the  United  States, 

during  the  session  of  any  district  or  circuit  court,  $5  00 
But  no  per  diem  allowance  is  made  for  attend- 
ance at  rule  days  ;  nor  when  the  circuit  and  dis- 
trict courts  sit  at  the  same  time,  can  attendance 
be  allowed  except  for  one  court  (1842,  ch,  29). 
For  travelling  from  the  place  of  his  abode,  to  such 

court,  per  mile - -- 0  10 

Such  fees  in  each  state,  respectively,  as  are  allowed 
in  the  supreme  court  thereof. 
Act  1799,  ch.  19,  §  4. 

(1)  The  above  remarks  were  written  during  the  lifetime  of 
the  late  Justice  Woodbury,  whose  death  has  since  been  so 
widely  lamented.  And  I  had  hoped,  when  I  wrote  them,  that 
they  miofht  meet  his  eye ;  since  I  was  confident  that  the  pres- 
sure of  his  official  duties,  added  to  the  indistinct  and  scarcely 
intelligible  meaning  and  construction  of  the  statutes  referred 
to,  was  the  reason  of  his  error  and  mistake,  and  that  he  would 
feel  not  unkindly  for  the  explanation  given.  But  another  now 
occupies  his  place  upon  the  bench  of  the  supreme  court,  and 
will  perform  the  duties  which  he  then  performed;  though 
among  friends  and  in  the  family  group,  there  will  be  ever  a 
vacant  place  which  none  can  fill.     Requiescat  in  pace. 


COSTS.  283 

District  Courts.  Fees  of 

1  •  •  1  district 

His  stated  fees  in  the  cases  luTriii  mentioned,  attorueys. 

shall  be  as  follows,  to  wit  : 
For  drawing  interrogatories So  00 

For  drawing  and  exhibiting  libel,  claim  or  answer,    G  00 
For  all  other  services  in  any  one  cause 0  00 

Act  1799,  ch.  19,  §  4. 
In  addition  to  fees,  every  district  attorney,  except 
the  district   attorney  of   the  southern  district  of 
New-York,  receives  an  annual  salary  of  $200-00 
Act  1841,  ch.  35). 

(2.)     CLERKS. 

Siqnrme  Court. 

For  his  attendance  in  court,  per  day - $10  00   ^ig^j-L" 

For  his  other  sendees,  double  the  fees  of  the  clerk 
of  the  supreme  court  of  the  state  in  which  the 
supreme  court  of  the  United  States   shall   be 
liolden  ;  adopting  fee  bill  of  ]Maryland. 
Act  1799,  ch.  19,  -^  3. 

Circuit  Olid  District  Courts. 
The  same  fees  as  are  allowed  in  the  supreme 

court  of  each  state,  with  an  addition  thereto  of 

one-third  of  said  fees. 

For  attendance  at  any  circuit  or  district  court,  per 

day - -     5  00 

But  not  for  attendance  at  rule  days  ;  nor  when 
the  circuit  and  district  courts  sit  at  the  same 
time,  can  attendance  be  allowed,  except  as  for 
one  court  (1842,  ch.  29). 

For  travel  from  the  place  of  their  abode,  to  either 

of  said  courts,  per  mile -     0   10 


284  JURISDICTION  OF  THE  FEDERAL  COURTS. 


I  ees  of  In  case  a  clerk  of  a  court  of  the  United  States 

performs  any  duty  which  is  not  perfonned  by  the 
clerks  of  the  state,  and  for  which  the  laws  of  the 
state  make  provision,  the  court  in  which  such  ser- 
vice shall  be  performed  shall  make  a  reasonable 
compensation  therefor. 

Act  1799,  ch.  19,  §  3. 

District  Courts  in  Admiralty. 
For  drawing  every  stipulation,  process,  monition 

or  subpama,  for  each  sheet  containing  90  words,  $0  15 

and  for  engrossing  each  sheet --       "  0  10 

Entering  the  return  of  process "  0  15 

Filing  every  libel,  claim,  pleading,  or  other  paper,    0  OG 
Copies  of  the  pleadings,  interrogatories,  deposi- 
tions and  exhibits,  when  required,  for  each  sheet 

of  90  words,     0  10 

Entering  each  proclamation "  0  15 

Entering  each  default "  0  12 

Entering  every  rule  of  court "  0  12 

Examining  each  witness,  and  drawing  his  deposi- 
tion, for  each  sheet  containing  90  words -     0  15 

Certifying  each  exhibit  or  writing  shown  to  a  wit- 
ness at  his  examination - -     0  25 

Drawing  every  decree  or  decretal  order,  for  each 

sheet  containing  90  words -- 0  15 

and  for  entering  the  same  in  the  minutes,  for 

each  sheet  as  aforesaid 0  10 

For  drawing  a  record,  or  making  a  copy  of  the 

proceedings,  for  each  sheet  containing  90  words,  0  15 
But  no  pleading,  deposition,  exhibit,  or  other 
writing,  to  be  inserted  therein  verbatim,  or  in  hac 
verba,  shall  be  computed  as  any  part  of  such  draft. 


COSTS.  285 

Entering  a  record  in  the  register,  or  engrossing  or  Fees  of 

copying  proceedings  or  records  to  be  sealed  or 
exeniplilied  ;  for  each  sheet  of  ninety  words,  in- 
chiding  all  the  pleadings,  depositions,  exhibits 

and  writings  inserted  therein 0  if) 

Every  certificate 0  20 

Entering  return  of  appraisement  or  sales,  for  each 

sheet  of  90  words  _- - 0  10 

Affixing  the  seal  to  any  paper  when  required 0  20 

Drawing  commission  to  examine  \^tnesses,   for 

each  sheet  containing  90  words  ._ 0  15 

and  for  engrossing  the  same,  if  on  parchment, 

including  tlie  i)archment  — 0  20 

and  if  on  paper,  for  each  sheet  of  90  words 0  10 

Swearing  each  witness  in  court  — --     0  10 

For  every  entry  or  writing  not  mentioned  or  de- 
scribed, such  allowance  shall  be  taxed  as  for 
similar  services  herein  mentioned. 
All  money  deposited  in  court,  one  and  a  quarter 
per  cent. 

Acts,  1799,  eft.  19,  -^  3  ;  1793,  ch.  20,  ^  2. 

(3.)     MARSPIALS. 

For  the  service  of  any  writ,  warrant,  attachment.  Fees  of 

or  process  issuing  out  of  any  courts  of  the  United 
States--- - - - 2  00 

and  in  case  there  be  more  than  one  person 
named  in  the  said  writ,  warrant,  attachment  or 

process,  then  for  each  person  so  named 2  00 

For  his  travel  out  in  serving  each  writ,  warrant, 

attaclnnent  or  process  aforesaid,  per  mile 0  05 

to  be  computed  from  the  place  of  service  to  the 
com*t  where  the  writ  or  process  shall  be  return- 


286  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Fees  of  ed  ;  and  if  more  persons  than  one  are  named 

therein,  the  travel  shall  he  computed  from  the 
court  to  the  place  of  service  which  shall  be  most 
remote,  adding  thereto  the  extra  travel  which 
shall  be  necessary  to  seiTe  it  on  the  other. 

For  each  bail  bond   0  50 

For  actually  summoning  witnesses  or  appraisers, 

each - - 0  50 

For  every  proclamation  in  the  admiralty 0  30 

For  sales  of  vessels  or  other  property,  and  for  re- 
ceiving and  paying  the  money,  for  any  sum  under 
$500*00,  two  and  one  half  per  cent ;  for  any  larger 
sum,  one  and  a  quarter  jper  cent  on  the  excess. 

For  summoning  all  the  jurors  for  any  one  court 

(1841,  c/^35) 30  00 

and  in  those  states  where  jurors,  by  the  laws  of 
the  state,  are  drawn  by  constables  or  other  of- 
ficers of  corporate  towns  or  places,  by  lot,  the 
marshal  shall  receive,  for  the  use  of  the  officers 
employed  in  summoning  the  jurors  and  returning 

the  i;emre,  the  sum  of 2  00 

and  for  his  owii  trouble  in  distributing  the  venire, 

the  sum  of 2  00 

p'or  every  day's  actual  attendance  at   any  court 

(1841,  cA.  35) -- 5  00 

But  not  for  attendnnce  on  rule  days  ;  nor  wlien 
the  circuit  and  district  courts  sit  at  the  same 
time,  can  attendance  be  allowed,  except  as  for 
one  court  (1842,  ch.  29). 

And  at  the  rate  per  mile  of 0  10 

for  his  travel  from  the  place  of  his  abode  to  ei- 
ther of  the  said  courts. 


COSTS.  287 

And  for  all  other  serv'ices  not  herein  enumerated,  Fees  of 

except  as  shall  be  hereafter  provided,  such  fees 
and  compensations  as  are  allowed  in  the  supreme 
court  of  the  state  where  such  services  are  per- 
fonned. 

Act  1799,  ch.  19,  ^  1. 


(L)     FEE  BILL  IN  ADMRALTY  CASES, 

IN  THE  SOUTHERN  DISTRICT  OF  NEW-YORK, 

Advocates^  and  Proctors'  Costs  taxed  hi  this  District. 


7 -J 


Fee  bill  in 
admirallv 


ADVOCATES    FEES. 

Retaining  fee S3 

Perusing,  examining  and  signing  a  libel,  answer,  distdct'"' 

special  pleading,   interrogatories  or  exceptions,  N-  v. 

when  the  advocate  is  not  the  proctor  in  the  cause,  1  25 

Attendance  in  court  on  every  necessary  proceeding 

in  a  cause   0  G2\ 

Arguing  in  court  on  any  special  motion  actually 
Htigated 1  2-5 

Arguing  every  special  plea,  demurrer  or  exceptions, 
actually  litigated - —  2  50 

Arguing  on  final  hearing,  on  pleadings  and  proofs, 
when  the  cause  is  litigated  on  the  merits  and  in 
no  other  case - --  5  00 

Attending  a  judge  or  commissioner  on  taking  tes- 
timony dc  bene  esse  out  of  court,  but  no  allowance 
for  more  tiian  one  attendance 5  00 

Attendance  before  the  clerk  or  assessors,  on  refe- 
rence by  order  of  the  court,  but  no  allowance 
for  more  than  one  attendance -3  00 

No  fees  taxed  for  more  than  one  advocate  in  the 
same  cause. 


288  JURISDICTION  OF  THE  FEDERAL  COURTS. 

proctors'  fees. 
rdmh-alty    Retaining  fee  ;  (but  when  the  same  person  acts 
m  sonth-         jjQ^]^  gg  advocate  and  proctor,  no  retaining  fee 

ernuistrt,  r  '  <-> 

New  York.       allowed  as  proctor)   $3  75 

Drawnng  libel,  plea,  answer,  claim,  exceptions, 
necessaiy  affidavits,  &c.,  each  folio  of  100  words,  0  25 

Copy  same  for  each  folio. 0  12^ 

Every  necessary  motion  made  in  court — 0  62-2 

Attendance  in  com-t  on  every  necessary  proceeding 

in  a  cause  (not  being  the  advocate)   0  62^ 

Drawing  interrogatories,  each  folio  of  100  w^ords-  0  25 

Copy  same  per  folio - 0  12^ 

[But  taxation  is  never  to  exceed  $2-50  for  draft, 
and  $1-50  for  copy  of  interrogatories.] 
Brief  on  special  motion  or  petition  argued  in  court 

on  both  sides --  1  12^ 

Brief  on  final  argument  in  court  upon  the  merits  _  2  50 
[These  briefs   to  include  all   abbre\dations  of 
pleadings,  proofs,  &c.,  and  no  separate  allowance 
made  therefor.] 
Attending  judge  or  commissioner  on  taking  testi- 
mony de  bene  esse  out  of  court  (if  not  the  advocate),  5  00 
Attending  clerk  or  assessors  on  reference  and  com- 
putation of  damages  (if  not  the  advocate) 3  00 

[But  no  more  than  one  attendance  taxed  in  ei- 
ther of  the  two  last  cases.] 
Attending  taxation  of  costs,  when  notice  thereof 

has  been  given  or  received  — 0  50 

Copy  of  bill  of  costs  for  opposite  party 0  37^ 

Every  necessary  notice  actually  given 0  37| 

Arguing  a  motion  or  cause  in  court  (if  not  the  ad- 
vocate, and  if  the  charge  is  not  taxed  for  an  an- 
vocate  in  the  cause) 1  25 


COSTS.  289 

FEES  Of  ADVOCATES  AND  PROCTOnS  ON  PROCEEDINGS  TO  OBTAIN 
OUDER  FOR  PROCESS  FOR  SEAMKN's  WAGES  IN  PLENARY  CASES. 

Drawing  attiilavit  and  account,  per  fol.  of  1 00  words,  0  25     j,^.^^  j^jj,  ^^^ 

Copy "  0    12.V    ■;"l'"inihy 

•i  •'  "in  sdutu  rn 

Attendance  before  judge _-  0  02^-   New  ^ork 

Sunnnons  forjudge,  per  Iblio 0  2-5 

For  copies,  per  folio 0  12.V 

Motion  for  process —  0  G2.V 

Arguing  motion  wlu'u  o[)posed 1  25 

Copy  costs  for  opposite  party 0  37.V 

Attendance  on  taxation --  0  50 

Witnesses'  fees  per  day _ 1  25 

Drawing  affida\'it  of  serving  summons,  per  folio--  0  25 

Copy,  per  folio —  0  12.V 

And  disbursements  actually  made. 
If  before  a  U.  S.  commissioner,  or  state  officer,  his 
fees  are  to  be  added. 

(5.)  FEE  BILL  LN  SUITS  IN  EQUITY. 
Retaining  fee  for  counsel $5  00   Fee  bill  in 

equity. 

Perusing  and  signing  bill - —  2  50 

Retaining  fee  for  solicitor - 3  00 

Arguing  every  special  motion _- -  2  50 

Drawing  bill,  78  folios  at  2S  cents, ---  22  24 

Engrossing,  with  copies  of  papers,  SI  folios  at  14 

cents, n  34 

Copy  to  keep,  at  7  cents, - 5  07 

Clerk,  filing  bill, - _._  0  50 

Clerk,  for  subpcrna,  &:<:., 3  00 

Marshal,  serving  do., 10  91 

Rule  to  answer,  2^c.,  clerk  entering  same,  50c.,--  0  78 

Solicitor  attending  entering  nde 0  50 

Dr.  atll.  for  default,  tbl.  2,  5Gc.,  eng.  2Sc.,  copy  14c.-  0  98 
19 


290  JURISDICTION  OF  THE  FEDERAL  COURTS. 

Fee  bill  in  Oath  to  Same  -  _ 0  12.^ 

"'"""■        Clerk,  filing  same,-- 0  -50 

Dr.  order  for  default,  fol.  1,  28c.,  clerk  entering 

same,  50c.,  0  50 

Solicitor  attending  entry 0  50 

Dr.  afft.  to  take  bill  as  confessed,  fol.  2, .--     0  56 

Eng.  2Sc.,  copy  14,  oath  12.^,  clerk  filing  50c.,  _.     1  04| 
Dr.  order  pro  confessio,  fol.  1,  28c.,  clerk  enter- 
ing same,  50c -- 0  78 

Solicitor  attending,  50.,  copy  order,  25c., --     0  75 

Dr.  aff't.  to  oppose  motion  to  open  default,  fol.  10,     2  80 

Eng.  $1-40,  copy  70c.,  oath  12^, 2  22| 

Clerk  filing  50c.,  copy  order  25,  solicitor  attend- 
ing 75c., 1  50 

Dr.  brief  $1'25,  dr.  order  for  costs  2Sc.,  solicitor 

attending  50c., 2  03 

Dr.  costs,  fol.  5,  $1-40,  copy  50c.,  taxation  $2,  at- 
tendance 50c.,  — -- — 4  40 

Proof  disbursements  5Gc.,  dr.  demand  costs  fol.  1, 

28c.,  copy  7c., 0  35 

Exemplifications  necessary  to  draw  bill  of  com- 
plaint,  ^- 4  19 

Postages  and  disbursements  necessary,  in  addition. 

(G.)     FEE  BILL  IN  SUITS  AT  LAW, 

AS  TAXED  IN  THE  CIRCUIT  COURT  FOR  THE  SOUTHERN 
DISTRICT  OF  NEW-yORK(a). 

Fee  bill  in  Retaining  fee,  attorney  and  counsel ,{h) $8  GO 

suits  at  .  ,  . 

law.  Notice  retamer  and  service, __  0  25 

(a)  This  bill  of  costs  was  in  a  patent  cause. 
{b)  Same  for  each  term  when  attorney  and  counsel  attended 
prepared  for  trial. 


COSTS.  29 1 


Draft  plea,  SI --50;  3  copies,  2-2-5, 3  75     Fee  bill  i:. 

Buila  ill 

Filing  plea 0  12.^   h 


law. 


-'- 

yi\) 



0 

2o 



o 

00 



0 

42 



2 

00 

•_> 

50 



2 

00 



'2 

00 



0 

25 

0 

25 

Attendance    on    takiiiu;  deposition,  for  each  per- 

son,(r) - 1    00 

Draft  notice  testimony  inider  commission,  fol.  S,(r)  2  00 

Copy  same  to  keep  and  serve,''each  l'OO(c)     S2  00 

Service  of  same —     (r) 

Procuring  order  for  commission (r) 

Clerk  entering  rule  for  same (r) 

Drawing  commission  and  instructions,     (r) 
Draft  interrogatories,  2-50  ;  copy,  1 '00,    {c) 

Counsel  perusing,  &:c... {() 

Copy  to  serve,  1-00;  to  annex,  l-OO..     (r) 

Notice  of,  and  seiTice (r) 

Notice  of  retm-n  of  commission  &  service,  (c) 

Copy  specification  (a),  to  annex  fol.  5 —  0  02^- 

Affidavit  merits,  and  copies  and  oath 0  S7i 

Clerk  filing,  0-17  ;  notice  of,  0-25 0  42 

Draft  notices  of  special  matter(«)  under  the  statute, 

fol.  17 _ - 4  25 

Copy  to  serve  and  keej),  4-25  ;  service,  0-25 4  50 

Notice  to  produce  letters,  and-ser\nce 0  25 

Notice  to  produce  invoices,  and  service-- --  0  25 

Subpoena  tickets  (each)  0-25  ;  service,  0-12i    0  37^ 

Subpoena  duces  tecum,  1-00;  ticket,  0-25 1   25 

Service --- _ 0  12.V 

Attorney  and  counsel  fee  and  brief  on  trial 11  00 

Draft  order  to  make  a  case 0  37i 

Attendance  on  same _.   1  00 

Service  of  order  and  copy  -- — 0  37^ 

(fl)  See  note  (a)  on  previous  page. 

(r)  Same  for  each  commission  necessary,  Avitnesses'  fees  and 
conimissioncr's  fees  in  addition. 


292  JUraSDICTION  OF  THE  FEDERAL  COURTS. 

Fee  bill  in   Draft  CHSO,  O'OO  ;  engTossing,  2-50 $7  50 

law.  Counsel  perusing _ 2  00 

Service  of  same _. _ 0  25 

Notice  of  settlement  of  case,  and  service _-  0  25 

Notice  of  argument  to  attorney  and  clerk 0  50 

Proof  of  service .-_ ._  0  62^ 

Note  of  issue,  0-25  ;  filing,  0-25 0  50 

Copy  lease  as  settled  to  serve  &  keep  (each  2*50),  5  00 

Copy  for  court __  5  00 

Brief  and  points  on  argument __  5  00 

Attorney  and  counsel  arguing 8  00 

Clerk's  fees  thereon __   0  37^ 

Draft  rule  for  new  trial _   0  25 

Clerk  entering  the  same  ._ 0  37^ 

Notice  of  same _ _. 0  25 

Draft  notice  of  intention  to  issue  new  commission, 
and  statement  of  testimony  expected,  fol.  4  and 

copy 1  50 

Copy  to  serve,  0-50;  notice,  0-25 0  75 

Attorney  and  counsel  attending  on  motion  for  re- 
argument  -- -_ _   3  50 

Draft  affidavit  to  oppose  fol.  3,  copy  and  oath 1  25 

Affidavit  to  sei*ve  for  j  udgment 1  25 

Copy  to  serve,  0-37^  ;  service,  0-25 0  G2| 

Notice  of  motion  for  judgment 0  25 

Proof  of  service _  0  62^ 

Attoniey  and  counsel  arguing  motion    — 6  00 

Draft  order  and  copy,  fol.  1 0  37^ 

Attendance  on  entering  order 0  25 

Motion  for  same _ 0  62^ 

Notice  of  same,  0-25  ;  clerk's  fees,  0-50   0  75 

Notice  of  stipulation _ __  0  25 

Draft  affidavit  to  oppose  issuing  new  commission, 
fol.  5 1  25 


COSTS.  293 


Copy  of  same,  and  oath - SO  62^ 

Draft  allitlavit  of  no  stij)ulation  having  been   re-  law 

ceived,  fohl 0  2o 

Copy  of  same,  and  oath 0  25 

Ckn-k's  fees  on  fiHnir  &  entering  rule  for  judgment,  0  87^ 

Draft  rule  for,  0-2-3  ;  motion  for,  0-G2.V --   0  87^ 

Notice  of  same,  and  service  — 0  2-5 

Draft  affidavit  to  oppose  motion  to  suppress  de- 
positions, fol.  7  I  75 

Copy,  0-87  i- ;  oath,  0-12i 1   00 

Attorney  and  counsel  on  argimient - _  0  00 

Clerk  entering  rule  denying  motion -   1    14 

Notice  of  rule  and  service; -  0  25 

Costs,  1-00  ;  copy  to  keep  and  serve,  1-00 2  00 

Notice  of  taxation-- 0  50 

Affidavit  of  disbursements -   0  G2| 

Judgment  record ^  00 

Attendance  on  taxation  — 0  50 

Taxation--- - 0  07 

Filing  record — - - 1  00 

Fi.  fa.,  1-00;  return,  0-19 -   1  19 

Clerk  docketing  judgment   0  OG 

Signing  record,  0-33  ;  sealing  fi.  fa.,  0-34 0  G7 


F'ee  hill  in 
fiiii'a  at 


INDEX. 


»*,  References  in  italics  are  to  the  noUs :  otherwise  to  the  texf. 

Pagb. 

Abatement  of  suit  : 

Death  of  the  parties  does  not  cause 60 

At  common  law,  contra 60 

Rule  confined  to  personal  actions 60 

Not  for  defects  in  matters  of  form   62 

Affidavit  : 

Before  whom  ?nust  be  sworn  to  be  evidence 41 

Administrators  : 

When  may  appear,  on  death  of  party 60 

Effect  of  refusing  to  become  a  party 61 

Entitled  to  a  continuance 62 

Of  one  of  the  parties  may  come  in 62 

Can  not  appear  at  common  law 60 

When  death  may  haj^pen 60 

Can  come  in  only  on  personal  actions    60 

When  sci.fa.  not  necessary  to  compel  appearance 61 

May  be  required  to  produce  letters 61 

Admiralty  and  maritime  jurisdiction  : 

In  what  courts  vested    8 

Extent  of 8,  52 

Principles  of,  not  according  to  common  law    8,  190 

May  be  vested  in  territorial  courts    8 


296  INDEX. 


Admiralty  and  maritime  jurisdiction  (continued)  : 

DISTRICT    COURT. 

Vested  in 193 

Pleading,  rules  of,  liberal 190 

General  rules  of,  ohtairv^  in  federal  courts 190 

Not  governed  hy  decisions  of  13  and  15  Riftliard  II 190 

Is  not  limited  hy  amount 192 

Depends  on  subject  matter 190 

Limited  as  to  locality 192 

BotJi  as  an  instance  and  prize  court  190 

In  cases  of  j^rize 190 

As  complete  as  in  England 190 

In  cases  of  seizures 191,  192 

When  seizures  are  made  in  some  particular  district 191 

When  seizures  arc  made  on  the  high  seas 191 

Seizures  are  civil  causes  of 195 

In  cases  of  forfeitures 192 

of  salvage 192 

of  material  men 192 

of  collision 192 

of  rvages 192 

of  pilotage 192 

of  hypothecation 192 

of  bottomry  bonds 192 

of  charter  parties 192 

of  bills  of  ransom 192 

Attaches  to  court  first  acting 192 

When  jurisdiction  is  concurrent 192 

In  cases  of  re-delivery  of  property 192 

Against  foreign  men  of  tear,  for  alleged  seizure 193 

Extent  of 194 

Set-offs  not  ad?fiissible  generally 195 

Forfeiture  of  a  vessel  under  the  slave  trade  is  an  admiralty 

cause 195 

Quasi,  over  inland  waters 207  -  210 

Nature  of  cases  under  such  law 207  -  8 

Jwy  trial  under,  waived,  in  practice 208 

Limits  of  such  act 209 


INDEX.  297 

Paob. 

Admikaltv  cases : 

Depositions  in,  dc  hene  esse,  when  may  be  taken 50 

How  may  be  certified  and  used 50 

New  evidence  in,  on  appeal 32 

% 

Aliens  : 

Circuit  court  has  jurisdiction  in  cases  respecting 140 

Where  an  alien  is  sued  in  a  state  court 145 

But  not  where  all  the  jpartics  arc   140 

Except  hij  consent  of  parties 141 

District  court,  jurisdiction  of",  respecting 196 

Alien  enemies  : 

May  be  seized,  arrested  or  removed,  in  time  of  war 80 

Power  of  circuit  and  district  courts  over 81 

Pou-cr  of  President  over,  unlimited 80 

Orders  against,  marshal  to  enforce 80 

"  "        judicial  power  to  enforce 80 

Can  not  mahc  declaration  to  become  a  citizen 81 

Capture  by,  as  commander  of  a  jirivate  vessel,  not  illegal  or 

invalid 81 

Can  not  sue  in  a  prize  court 81 

Ambassadors  : 

Federal  courts  have  jurisdiction  of  cases  affecting 7 

Supreme  court  has  original  jurisdiction  of 12,  97 

Is  not  such  original  jurisdiction  exclusive? 97 

When  the  supreme  court  has  exclusive,  and  when  original 

but  not  exclusive  jurisdiction  in  cases  respecting 100 

Indictment  under  act  of  1790  for  infracting  law  of  nations 
by  assaidting  one,  not  a  case  under  the  Constitution  affect- 
ing ambassadors 100 

Circuit  court  may  therefore  have  jurisdiction  of  such  a  case,  100 
Commencing  assault,  forfeit  their  immunity 100 

Amendments : 

Of  defects  in  form  always  allowed   62 

Except  as  to  those  demurred  to ^5 


298  INDEX. 

Page. 

Amendments  (continued) : 

Allowed  in  appellate  courts G2 

At  any  time  heforc  jttdgyncnt 63 

In  matters  of  form,  allowed  at  any  time 63 

Always  in  the  discretion  9fthe  court 63 

Allowance  or  disallowance  of,  no  cause  of  error 63 

In  judgments,  only  as  to  matters  of  form 63 

BY    SUPREME    COURT. 

Way  he  viade  to  a  record  hefore  it 63 

Not  to  introduce  new  subjects  of  contror,ersy 64 

By,  cause  to  he  remanded 64 

Writ  of  error  may  he  amended  in  its  return  day 31 

BY    CIRCUIT    COURTS. 

Alloxocd  in  revenue  cases,  or  in  rc7n 64 

For  matters  of  form  in  court  below 64 

But  not  for  errors  in  substance 64 

Reference  to  cases  respecting 64 

Appeals  to  supreme  from  circuit  court  : 

From  final  judgments  in  equity  cases 110 

in  admiralty  cases Ill 

in  cases  of  prize Ill 

^            Amount  necessary  to  entitle  one  to 112 

Differ  from  writs  of  error Ill,  176 

Governed  by  the  22d  and  23d  sections  of  judiciary  act  —  .  112 

Proper,  to  revieto  equity  and  ad?mralty  causes Ill 

May  he  taJcen  tvithinfive  years,  though  security  is  not  taken 

until  after  that  time Ill 

Does  not  lie  frovi  an  interlocutory  decree,  dissolving  or  re- 
fusing to  dissolve  injunction   112 

Lies  from  a  decree  of  sale  of  mortgaged  premises 112 

Dismissed,  no  citation  being  issued  and  served 112 

In  cases  of  copyrights,  see  also  Copyrights 117 

In  cases  of  patents,  see  also  Patents 117 

Sec  also  Courts,  Supreme  and  Circuit,  Appellate  Juris- 
diction. 


INDEX.  299 

pa6b. 

Appeals  to  circuit  from  DfsTRic  t  courts  : 

From  all  final  decrees 176 

W/iat  arc  final  decrees 176 

Must  he  taken  i?i  open  court  before  adjournment 170 

From  interlocutory  decree,  lehen 177 

Matter  in  dispute  must  equal  ffty  dollars 177,  178 

When  in  cases  where  demand  is  less  than  ffty  dollars 178 

Must  he  taken  to  the  next  circuit  court 177 

New  matters  of  defence  not  admitted  on 177 

If  none  taken  from  the  final  decree,  none  can  he  taken  from 

any  suhsequcnt  proceedings 177 

In  suits  for  assaults,  &fc.,  when -  -  -  ■  177 

May  he  sustained  in  part  and  dismissed  in  part 177 

Rules  adopted  hy  act  of  1803 177 

If  taken  icithin  5  years,  sujfcient,  though  security  not  taken 

until  after  that  time -  -  -  ■  178 

Evidence  goes  up  with-  an 178 

Judgments  on 179 

Appearance  : 

Waives  objection  to  jurisdiction 143 

Arrest  : 

For  crimes,  who  may  order 65 

Proceedings  on 66 

To  he  according  to  state  process (jQ,  76 

Process  of,  can  not  run  beyond  district 142 

Assignee  : 

Law  respecting  right  to  sue 143 

Can  not  commence  action  on  note,  &c.,  if  assignor  could 

not 143 

Foreign  bills  of  exchange  excepted  145 

Rule  applies  to  case  of  a  general  assignee 144 

Rule  does  not  apply  to  assignee  of  a  hail  bond 145 

does  not  apply  to  conveyances  of  land v  •  •  ■  -  144 


300  INDEX. 

Attorneys : 

Parties  entitled  to  have  suits  managed  by 91 

Multiplying  suits,  liable  for  costs 71 

Attachc : 

Not  liable  to  be  sued 99 

Bail  : 

Excessive,  not  to  be  demanded 19 

SuprcDie  court  may  talcc,  when  jfcrson  is  committed  hy  a  dis- 
trict court 19,  65 

May  be  taken  in  cases  of  treason 19,  65 

Questions  of,  do  not  involve  the  merits  of  a  case 20 

Princijiles  on  which  granted 20 

When  in  criminal  cases 20 

Who  may  take,  in  criminal  cases 65,  67 

In  capital  cases,  can  be  taken  only  by  the  federal  court  or 

their  judges 67,  68 

Laws  of  various  states  respecting,  adopted 75 

Captures : 

Jurisdiction  in  cases  of 204 

Causes  : 

Hovv^  managed 71 

See  also  titles  Equity  and  Common  law. 

Circuit  court  :  See  Courts,  circuit. 

Citizens  : 

Jurisdiction  of  suits  between  those  of  same  state 11 

*'                    ♦'         between  those  of  different  states 10 

"                    "         between  those  of  a  state  and  foreigners,  12 

"                    "         between  those  of  a  slate  and  a  state. .  .  9 

Citizens  of  a  state  : 

Inhabitants  of  District  of  Columbia  are  not 9,  35,  56 

A  corporation  is 9,   10 


INDEX.  301 

Paob 

Clerks  of  courts : 

How  appointed 91,  92 

Hotv  removed 91 

Not  permanent  officers 91 

Of  inferior  courts,  not  under  the  control  of  tlic  supreme  court,  91 

Fees  of 64 

When  same  person  is  clerk  both  of  circuit  and  district  court,  66 

Commission,  testimony  by  : 

Clerks  to  issue  subpoenas  to  witnesses 53-55 

Witnesses  to  obey  process 56 

Witnesses  entitled  to  fees 57 

Witnesses  not  compelled  to  go  out  of  county 57 

"  •'  "         nor  more  than  forty  miles.     57 

Subpoena  duces  tecum  may  issue 57 

Obedience  to,  enforced 58 

Copy  of  paper  to  be  made    58 

To  bring  witness  in  contempt,  fees  must  be  paid 58 

Generaihj  to  take  testimony  of  persons  beyond  reach  of  process,  53 

By  consent,  may  issue  in  any  case 53 

May  he  in  any  one's  handwriting 53 

Taken  hy  one  party,  may  he  read  hy  other 54 

One  party  preventing,  other  may  have  continuance 54 

When  will  not  issue  from  equity  side  of  court 54,  55 

Need  not  necessarily  he  signed  hy  witness 55 

Not  to  he  opened  before  trial 55 

Commissioners  to  take  bail,  acknowledgments,  d:c. : 

Circuit  courts  may  appoint 154 

Territorial  courts  may  appoint 62,  155 

Bail  taken  by,  valid 154 

False  swearing  before,  perjury 154 

May  exercise  authority  of  a  judge  under  the  30th  section 

judicial  act 154 

Power  in  respect  to  criminals 1 56 

Power  in  respect  to  seamen 155 

May  administer  oaths 41.   154 


302  INDEX. 

Pagb 

Commissioners  to  appoint  appraisers,  &c.  of  vessels  : 

How  appointed ^ 196 

Commissioners  to  take  depositions  : 

May  be  appointed  by  federal  courts    53 

Practice  on  commissions    54  -  CO,  &  notes. 

Can  not  issue  hab.  cor.  ad  tes.  when  2>erso7i  is  in  cortjinement 

under  U.  S.  process  55 

Fees  of 59 

See  also  titles  Depositions  and  Testimony. 

• 
Commission,  foreign  : 

Onl>/  iray  to  take  foreign  testimony 54 

May  he  written  in  English,  though  commissioners  arc  Dutch,  54 

In  foreign  country  may  include  ivitnesses  examined  at  home,  54 

Taken  abroad,  may  he  read  if  taken  hy  a  judge  in  presence 

[  ':            of  commissioner 54 

When  under  a  special  commission 54 

Not  in  an  enemy^s  country b^ 

Will  not  issue  till  commissioners  are  named 54 

Common  law  : 

Suits  at,  to  be  tried  by  a  jury 18 

"  7neaning  of  the  term 18 

Facts  found  by  a  jury  can  only  be  reviewed  at  common  law,  18 

Remedy,  when  it  exists,  secured  to  suitors 50 

Suits  not  tried  hy,  when  equity  jurisdiction  ohtains 88 

Consent  : 

Will  not  confer  jurisdiction  in  cases  hefore  the  sujiremc  court,    98 
Hut  will  in  the  circuit  court 141 

Constitution  cited  : 

•  Art.  .3,  §  1.  Judicial  power,  when  vested 3-6 

Art.  3,  §  2.  Judicial  power,  extent  of 6-16 

Art.  3,  §  2.  Original  jurisdiction  supreme  court    97 

i  Art.  3,  §  2.  Appellate  jurisdiction  supreme  court 102 


INDEX.  303 

I'aub. 

Constitution  citkd  (cotitiiiiied) : 

AMENDMENTS    TO. 

Art.  5.  Indictment,  &c IG 

"       G.  Jury  trial  to  criminals 17 

"       7.  .]  ury  trial  in  civil  suits 18 

"       8.  Jiail,  fines  and  punishment 19 

"     11.  Limitation  of  judicial  power ^0 

Constitution  : 

In  what  courts  judicial  power  vested  by 3 

Extent  of  judicial  jjower 6 

Original  jurisdiction  of  supreme  court  under 12 

Appellate  jurisdiction  of  supreme  court  under 14 

Jury  trial  in  criminal  cases  guarantied 15 

And  place  of  trial  designated 15 

Criminals  not  to  be  tried  without  indictment 16 

Nor  be  twice  put  in  jeopardy 17 

Persons  not  to  be  a  witness  against  themselves 17 

Persons  not  to  be  deprived  of  life,  liberty  or   property, 

without  due  process  of  law 17 

Private  property  not  to  be  taken  for  public  use,  without 

remuneration 17 

Criminals  to  have  a  speedy  trial 17 

"             to  know  accusation  against  llieni    18 

"             to  be  confronted  with  witnesses 18 

"             to  have  compulsory  process  for  witnesses 18 

"             to  have  assistance  of  counsel 18 

Jury  trial  in  civil  cases,  when  secured 18 

Excessive  bail  not  to  be  demanded 19 

Excessive  fines  not  to  be  imposed 19 

Unusual  punishments  not  to  be  infliclcd 19 

Judicial  power  not  to  extend  to  suits  brought  against  a 

state,  by  citizens  of  another  or  of  a  foreign  state 20 

Constitution,  amendments  of  : 

Effect  rff  amendments    1 G 

Higher  authority  than  the  Constitution  itself 10 


304  INDEX. 

Page. 

Constitutional  courts  : 

Supreme  court    3 

Inferior  courts ^ 

hatter  may  he  cstahlisJtcd  hy  Congress 4 

Meaning  of. 4 

Territorial  courts  are  not  constitutional  ones 5,  245 

See  also  titles  Courts,  Jury,  Crimes,  &c. 

Consuls  : 

Cases  respecting,  where  tried 8 

"When  supreme  court  has  original  jurisdiction  of  cases  re- 
specting     100'  101 

When  district  courts  have  exclusive  jurisdiction  of  cases 

against 196,  193  in  note. 

Can  not  he  sued  in  a  state  court 99,  193 

It  is  a  right  of,  to  he  sited  in  the  federal  courts    196 

Omission  to  claim  this  privilege,  not  a  waiver  of  it 193 

Contempts  : 

May  be  punished  hy  fine  and  imprisonment 42 

But  only  in  cases  in  presence  of  or  near  the  court    43 

Or  in  cases  of  misdemeanor  of  its  officers 43 

Or  of  resistance  to  lawful  process    43 

Power  to  punish  for,  independent  of  statute 42 

"  "  incident  to  all  courts 43 

Party  'purging  himself  of  ,  will  not  he  met  tvith  collateral  evi- 
dence    42 

What  is  a 52 

Publication  reflecting  on  a  court  is . 52 

So  unfair  practice  toward  a  witness 42 

So  oppression  under  color  of  process 43 

So  serving  process  in  the  actual  or  constructive  jn-escnce  of 

the  court 42 

J^ut  not  serving  a  party,  while  attending  court,  toith  a  sum- 

mons 42 

Will  not  he  relieved  against  by  habeas  corpus 43 

Attachment  for,  only  necessary  when  party  is  not  in  court  . .  43 
Courts  not  of  record  can  only  jmnish  hy  indictment,  except 

when  committed  in  the  presence  of  the  court 43 


INDEX.  305 

Contempts : 

A  person  struck  off'  the  rolls  of  an  inferior  court  on  account 

of  may  still  he  admitted  in  the  supreme  court 43 

General  references  respecting 44 

Copyrights  : 

Circuit  courts  have  cognizance  of  cases  respecting 156 

Such  jurisdiction  is  constitutional    156 

"  can  not  he  ousted 156 

Jurisdiction  extends  to  all  cases  of 156 

"  is  exclusive, 156 

Cases  respecting  may  be  carried  before  the  supreme  court 

like  other  cases 117 

Corporation  agreggate  : 

Is  a  citizeji  of  a  state 9,  10 

Costs  : 

Statutes  respecting,  list  of 255,  256 

"             "               abstract  of 260 

"  "  in  force 260-272 

"             "                indefinite 255 

Excluded  in  estimating  sum  to  give  jurisdiction 256 

"                      "                      "             right  of  appeal 256 

How  collected 261 

Misdemeanor  to  receive  unlawful  ones 261 

When  in  but  one  action,  if  more  than  one  is  commenced  .  259 

Courts  may  make  rules  to  prevent 260,  264 

Attorneys  to  pay,  if  proceedings  multiplied 264 

Rule  of  taxing  as  regards  particular  items 272 

Security  for,  not  required  if  plaintiff  is  a  citizen 273 

"             effect  of  not  demanding 273 

"             not  required  in  patent  cases 273 

On  dismissal  of  bill  generally 273 

"                 "      for  leant  of  jurisdiction 273 

On  setting  aside  a  dis?nission  of  a  cause 273 

When  jurisdiction  has  hccn  tahcn  away 273 

When  more  than  one  attorney  appears 274 

20 


306  INDEX. 

Paob. 

Costs  (continued) : 

On  continuance,  who  to  ])ay, 274 

None,  tchen  judges  differ  as  to   274 

Can  a  consul,  suing  for  the  United  States,  receive 274 

None  against  the  United  States 276 

Are  generally  in  the  discretion  of  the  courts 274 

Supreme  court  may  regulate 271 

Cases  rcforrcd  to 275 

IN    SUPREME    COURT. 

On  dismissal  of  writ  of  error 276 

"  to  be  inserted  in  the  mandate 277 

On  affirmance  of  writ  of  error 276 

On  revei-sal  of  writ  of  error 576 

None  against  the  United  States 276 

IN    CIRCUIT    COURT. 

When  plaintiff  in  equity  recovers  less  than  $500 64,  151 

«'  "  admiralty     "  "        $300 64,  151 

In  equity  proceedings  generally 277 

On  removal  of  causes  from  state  courts 274 

And  when  less  than  $500  is  recovered 274 

IN    ADMIRALTY    CASES. 

Generally  according  to  a  sound  discretion 274 

Against  defendants,  on  suits  for  fines,  &c 261 

Against  defendants,  when  discretionary, 261 

Informer  when  liable  for 261,  262 

When  claimant  to  pay  only  his  own 264 

On  discharging  property  arrested 26  J 

IN    FAVOR  OF  PARTIES 272 

IN  CASES  AT  LAW 279 

OF  DISTRICT  ATTORNEYS. 

Secured  to 256 

Measure  of 265-270 

Attorney  to  make  return  of 268 

Amount  may  retain 265  -  270 

When  no  per  diem  allowance 268 


INDEX.  307 

Paoi. 

Costs  (continued) : 

OF    CLERKS. 

Measure  of 2G5  -  270 

Clerks  to  make  return  of 2G8 

Amount  may  retain 2G5  -  270 

When  no  per  diem  allowance 268 

When  same  person  holds  two  offices 275 

OF    MARSHALS. 

Measure  of 2G5-270 

Percentage  allowed  to 258 

Of  marshal  northern  and  southern  district  New- York  —  .   2G9 

Marshals  to  make  return  of 268 

Amount  may  retain 265-270 

Where  no  per  diem  allowance 268 

OF  JURORS 262,  275  (n.) 

OF  WITNESSES 262,  275  (n.) 

OF    CRIERS     262 

Counsel  : 

Right  of,  secured  to  persons  charged  with  crime 18 

Causes  may  be  managed  by 71 

Multiplying  proceedings,  liable  for  costs 71 

Courts  under  the  constitution  : 

Judicial  power,  by  the  Constitution,  vested  in  the  supreme 

and  inferior  courts 3 

Extent  of  their  jurisdiction 6 

Their  jurisdiction  limited 3 

Jurisdiction  dcjjcnds  on  the  Constitution  and  the  statute  laiv,  3 

Are  bound  to  take  cognizance  of  state  laws 4 

Of  territories  not  constitutional  ones 5 

Jurisdiction,  vhen  dcj^ends  on  character  of  cause 6 

"                 when  on  the  character  of  the  parties    7 

Have  power  to  commit  for  offences 19 

Jurisdiction  of,  limited  in  suits  against  a  state 20 


308  INDEX. 

Pagb. 

Courts  under  the  constitution  (continued)  : 

Jurisdiction  determined  hy  tlie  parties  to  the  record,  and  not 

hy  those  in  interest 10,  21 

Judges  of,  see  title  Judges. 

Supreme,  original  jurisdiction  defined  by  Constitution 12 

•'             appellate  jurisdiction  ditto 12 

Inferior,  what  is  meant  by 4 

"          jurisdiction  of,  estahlished  hy  Congress 4 

"          jurisdiction  of,  how  exercised 4 

Courts,  proceedings  in  : 

Regulated  by  Congress 72 

Adopted  as  in  the  several  states 72 

Not  changed  by  subsequent  state  laws 73 

May  be  altered  by  federal  courts 73 

Capiat  cohere  adopted 73 

Tower  to  alter  constitutional 74 

Effect  of  act  of  1828 74 

Statutes  relating  to,  regarded  as  adopting  principles,  Sfc.  of 

English  court  of  chancery 75 

In  inferior  courts,  cannot  be  controlled  by  supreme 75 

Tower  to  regulate,  by  adopting  state  laws,  extends  to  future 

legislation 76 

How  far  state  laws  obligatory 76 

State  laws  adopted  must  not  be  repugnant  to  acts  of  Congress,  76 

In  replevin 77 

In  admiralty,  nature  of 76 

District  courts  cannot  adopt  or  alter 77 

Courts,  powers  in  common  : 

To  issue  writs 25 

"  of  habeas  corpus,  see  that  title. 

"  of  scire  facias,  do. 

"  of  mandamus,  do. 

"  of  execution,  do. 

"  of  ne  exeat,  do. 

"  of  injunction,  do. 


INDEX.  309 

Pasi. 

Courts,  powers  in  common  (continued) : 

To  devise  process 25 

To  order  production  of  papers,  see  title  Papers,  produc- 
tion OF. 

To  sustain  suits  in  equity,  see  title  Equity. 

To  grant  new  trials,  see  title  New  trials. 

To  administer  oaths  (see  also  title  Oaths)    41 

To  punish  contempts,  see  title  Contempts. 

To  make  rules,  see  title  Rules. 

To  take  testimony,  see  titles  Deposition,  Commission, 
Testimony. 

To  prevent  abatement  of  suits  on  death  of  parties,  see  title 
Administrators. 

To  amend  pleadings,  &^.,  see  title  Amendment. 

To  arrest,  hold  to  bail,  &c.,  see  titles  Crimes,  Recogni- 
zances, and  Bail. 

To  issue  execution,  see  title  Execution. 

To  hold  to  peace,  see  title  Good  behavior. 

To  maintain  jurisdiction  when  all  the  parties  are  not  in  the 
district,  see  title  Parties. 

To  have  jurisdiction  over  suits  for  penalties,  see  title  Pe- 
nalties. 

To  remit  recognizances,  see  title  Recognizances. 

See  also  titles  State  laws.  Process,  Jury  trial,  Issues 
OF  FACT,  Clerks,  Judgments,  Decrees,  Alien  Ene- 
mies. 

COURTS. 
Supreme  court  : 

general  provisions. 

Created  by  the  Constitution 3 

Number  of  justices  composing 95 

Quorum,  number  necessary  to  make 95 

Precedence  of  justices 95 

Session  of 95 

Adjournment  of 96 

Salary  of  justices  of 96 


310  INDEX. 

Paob. 

COURTS. 

Supreme  court  (continued)  : 

GENERAL    PROVISIONS. 

Jurisdiction  of,  is  sjjccial  and  limited 3,  98 

Can  not  act  extrajudicially  3,  98 

Can  not  act  hy  consent  of  2-)arties 98 

ORIGINAL    JURISDICTION. 

Defined  by  the  Constitution    12,  97 

In  cases  affecting  ambassadors,  public  ministers  and  con- 
suls     12,  97 

Is  not  jurisdiction  in  cases  a^ecting  ambassadors,  exclusive 

as  well  as  original 97 

In  cases  where  a  state  is  a  party 13,  97 

Kind  of  interest  necessary  to  make  a  state  a  party 99 

Congress  can  not  extend  it 12 

Depends  on  the  character  of  parties 13 

Does  not  exclude  appellate 13 

Congress  has  not  pointed  out  any  mode  of  proceeding  in  cases 
of 98 

EXCLUSIVE    JURISDICTION. 

In  v^hat  cases,  when  state  is  a  party    98 

In  suits  against  ambassadors,  &c 12,   100 

IN    OTHER    CASES. 

May  issue  writs  of  prohibition  to  district  courts,  see  title 

Prohibition. 
May  issue  writs  of  mandamus,  see  title  Mandamus. 
Can  not  compel  circuit  court  to  adopt  particular  proceedings, 

though  may  reverse  its  decisions 75 

APPELLATE    JURISDICTION. 

In  cases  arising  under  the  Constitution 14,  102 

"  arising  under  the  United  States  laws 14,  103 

••  arising  under  treaties 14,  103 

"  of  admiralty 14,  103 


INDEX.  311 

COURTS. 

SuPREiME  COURT  (contiiiued) : 

APPELLATE    JURISDICTION. 

In  cases  where  United  States  is  a  party 14,  103 

"  between  citizens  of  different  states 14,  104 

"  between  citizens  of  same  state 14,  104 

"  claiming  land  under  grants  from  different  states, 

14,  104 

Extends  to  law  and  facts, 14,  13  (n). 

Depends  on  the  character  of  the  case 13 

Must  he  exercised  in  accordance  with  Constitution  and  statute 

law 13 

Appellate  excludes  original  jurisdiction 13 

Can  he  exercised  only  in  cases  provided  for  by  Congress,  and 

in  the  manner  pointed  out 13 

Docs  not  extend  to  reversing  its  own  decisions 103 

Does  not  extend  to  criminal  cases 103 

As  to  matter  in  dispute,  see  title  Matter  in  dispute. 

As  to  when  the  appellate  jurisdiction  should  be  invoked  by 

writ  of  error,  see  title  Writ  of  error. 
As  to  when  it  should  be  invoked  by  appeal,  see  title  Ap- 
peal. 
In  cases  of  certificate  of  division  of  opinion,  see  title  Divi- 
sion OF  opinion. 
In  cases  of  copyrights,  see  title  Copyrights. 
In  cases  of  patents,  see  title  Patents. 
In  cases  of  habeas  corpus,  see  title  Habeas  corpus. 

FROM    district    COURTS. 

When  such  courts  ai'e  clothed  with  circuit  court  powers, 

appeals  lie  from  their  decisions  as  from  circuit  courts  . .    119 
In  particular  cases,  as  provided  by  law 119 

FROM    CIRCUIT    COURT    OF    DISTRICT    OF    COLUMBIA. 

From  final  judgments,  when  matter  in  dispute  equals  1000 

dollars 126 

When  allowed  in  cases  amounting  to  100  dollars 125 


312  INDEX. 

Page. 

COURTS. 

Supreme  court  (continued)  : 

FROM    CIRCUIT    COURT    OF    DISTRICT    OF    COLUMBIA. 

When  appeal  or  writ  of  error  a  supersedeas 127 

Cases  arising  in  the  orphans'  court,  how  reviewed 125,  229 

Can  he  exercised  only  in  final  cases 125 

Not  in  cases  of  division  of  opinion 125 

Nor  in  criyninal  cases -  125 

Matter  in  dispute  is  the  sum  claimed 125 

FROM    TERRITORIAL    COURTS. 

Generally  in  same  cases  as  from  circuit  courts 127  -  9 

OREGON. 

From  final  decisions  of  supreme  court  of  territory,  where 
matter  in  dispute  exceeds  2000  dollars   129 

■  .  MINESOTA. 

In  like  cases  as  in  Oregon,  where  matter  in  dispute  exceeds 
1000  dollars 130 

UTAH. 

In  like  cases  as  in  Minesota 130 

.  In  all  cases,  without  regard  to  value,  where  title  to  slaves 

or  personal  freedom  comes  in  question 130 

NEW-MEXICO. 

In  like  cases  as  in  Utah 130 

FROM  DECREES  OF  STATE  COURTS. 

Where  the  decision  is  against  a  treaty,  statute,  or  authority 

of  the  United  States 120 

Or  in  favor  of  a  state  law,  claimed  to  be  repugnant  to  such 

a  treaty,  law,  &c 123 

On  such  appeal,  decision  final 124 

Error  must  be  apparent  from  the  record 124 

But  need  not  he  stated  in  so  many  words 122 

Judgment  of  state  court  must  he  a  final  one 121 


INDEX.  313 

COURTS. 

Supreme  court  (continued) : 

FROM  DECREES  OF  STATE  COURTS. 

Jurisdiction  constitzifional,  hut  a  delicate  power 121 

Jurisdiction  maintained,  when  one  party  is  a  state,  and  the 

other  a  citizen  of  the  same  state 121 

Some  of  the  qtiestions  specified  in  the  statute  must  arise  and 

he  decided  as  there  required 121 

Requisites  of  decisions  of  state  courts 28,  29,  121 

Jurisdiction  not  limited  hy  value  of  matter  in  dispute 105 

Jurisdiction  ivill  not  he  exercised  of  conflict  of  state  laws 

and  a  state  constitution 123 

Judgment  of  this  court  must  he  confined  to  the  particular  error  123 
Writ  of  error  may  he  directed  to  any  court,  where  the  record  is  123 
General  cases  referred  to 123 

PRACTICE    ON    APPEAL. 

Judgment  of,  on  reversal,  to  be  such  as  should  liave  been 

given  in  the  court  below 113 

Can  not  issue  execution 113 

Nor  assess  damages 113 

Must  remand  cause,  when  reversal  is  in  favor  of  the  plain- 
tiff", or  damages  are  to  be  assessed 113 

As  to  matter  in  dispute  determining  jurisdiction,  see  title 
Matter  in  dispute. 

from  territorial  courts. 

Generally,  in  like  cases,  as  from  circuit  courts, 127,  128 

For  particular  cases,   in  the  various  territories,  see  title 

Courts,  territorial. 
From  decree  of  state  courts,  see  title  Courts,  state. 

Circuit  Courts  : 

general  provisions. 
Judge  of 135 

District  judge  can  not  act  on  appeal  from  his  own  decision  136 

Two  justices  may  be  required  to  hold 136 

Justice  required  to  attend  but  one  session  annually 137 


314  INDEX. 

Paoi. 

COURTS. 
Circuit  courts  (continued) : 

GENERAL    PROVISIONS. 

At  such  term,  what  business  entitled  to  preference 137 

Sessions  of,  see  Appendix. 

Special  criminal  sessions  may  be  ordered  near  the  place 

where  the  crime  was  committed 137 

Other  special  sessions  may  be  ordered 137 

Adjournment  of,  when  judges  are  not  present 137,  138 

Adjournment  in  case  of  dangerous  sickness   138 

Judges  of,  have  no  separate  commission 135 

"  dead,  another  may  sit 136 

District  judge  may  hold,  when  no  allotment  oj"  justices  has 

been  made 136 

District  judge  not  sitting  judicially  is  deemed  absent  in  laxo,   136 

Jurisdiction  of,  limited 4 

Decrees  of,  may  be  erroneous,  but  are  not  nullities 3,  4 

Can  not  be  compelled  by  supreme  court  to  adopt  particular 

proceedings,  though  decision  may  be  reversed 75 

Can  not  arrest  out  of  its  district 142 

,  Can  not  send  process  beyond  the  district 143  and  note. 

Can  not  render  judgment  against  a  person  not  served  with 

process,  unless  he  voluntarily  appears    143 

Jurisdiction  must  appear  on  the  record 139 

Jurisdiction  does  not  extend  to  all  cases  under  the  laws  of  the 

United  States 139 

Jurisdiction  having  attached,  is  not  lost  by  a  change  in  the 

condition  of  parties 140 

When  jurisdiction  does  not  attach  in  suit  brought  by  an 

assignee,  see  title  Assignee. 
As  to  amount  in  controversy,  see  title  Matter  in  dispute. 
Has  no  jurisdiction  in  cases  where  a  deed  has  been  executed 

to  confer  jurisdiction   , 141 

All  parties  on  both  sides  must  be  subject  to  jurisdiction  of  . .    141 
But  they  may  be  administrators,  8fc.  as  well  as  j^'t'ivatc  per- 
sons     141 


INDEX.  315 

Fa«l 

COURTS. 
Circuit  courts  (continued) : 

GENERAL    PROVISIONS. 

Appearance  waives  ohjection  to  jurisdiction 141,   143 

May  proceed  to  judgment,  though  all  the  parties  are  not  be- 
fore it °* 

Has  jurisdiction  of  a  suit  on  a  judgment,  when  it  could  not 

have  had  on  note  the  subject  of  the  judgment 143 

Has  jurisdiction  of  suit,  endorsee  against  endorser,  though 

could  not  have  of  endorsee  against  maker 144 

Must  try  all  crimes  presented  before  it 142 

Parties  may  consent  to  jurisdiction 141 

ORIGINAL    JURISDICTION. 

In  cases  where  United  States  is  a  party 140 

"  where  an  alien  is  a  party 140 

"  where  the  suit  is  between  citizens  of  different  states,  140 

Has  none  when  a  citizen  of  the  district  of  Columbia  is  plain- 

tiff 139 

Has  none  where  both  parties  are  aliens,  except  by  consent  of 
all 140 

Nor  where  neither  of  the  parties  reside  in  the  state 141 

Nor  where  a  state  sues  citizens  of  the  same  or  another  state  .   141 
Nor  in  suits  for  j^enalties  and  forfeitures 142 

EXCLUSIVE    JURISDICTION. 

In  criminal  cases  which  are  capital 141 

In  cases  arising  under  acts  respecting  patents  and  copy- 
rights, see  titles  Pattnts  and  Copyrights. 

CONCURRENT   JURISDICTION    WITH    THE    DISTRICT    COURTS. 

In  cases  of  crimes  and  offences,  except  when  the  same  are 

punishable  with  death 141,   189  («.) 

Has  jurisdiction  of  all  offences  against  the  United  States. .  .    141 
Has  jurisdiction  of  robbery  committed  on  the  high  seas,  or  on 
a  vessel 142 


o 


16  INDEX. 


Pagb. 

COURTS. 

Circuit  courts  (continued) : 

CONCURRENT  JURISDICTION  WITH  THE  DISTRICT  COURTS. 

Has  jurisdiction  of  an  indictment  under  act  of  1790,  ch.  9, 

for  assaulting  an  ambassador 100,  142 

May  try  crimes  out  of  the  county  where  they  were  committed,  142 
See  District  courts. 

In  suits  upon  assigned  debentures 152 

See  title  Debentures. 

In  suits  brought  by  the  United  States  or  its  officers,  whe- 
ther the  amount  reaches  $100 155 

Extends  to  all  cases 155 

In  cases  of  piracy,  see  title  Piracy. 

In  cases  of  slave  trade,  see  title  Slave  trade. 

In  suits  brought  against  persons  obstructing  or  hindering 
government  surveyors 164 

Over  causes  arising  under  the  revenue  laws 164,  165 

Over  crimes  committed  in  the  Indian  country 167 

But  does  not  extend  to  crimes  committed  by  one  Indian 
against  the  jjerson  or  property  of  another 167 

But  does  extend  to  the  case  of  a  white  man  who  assumes  In- 
dian hahits 167 

Construction  of  act  of  1802   168 

Over  penalties  under  the  Indian  acts 168 

Over  suits  for  infractions  of  laws  regulating  steam  trans- 
portation and  conveyances 168,  169 

Over  causes  arising  under  the  post-office  acts 170 


INDEX.  317 

Pas 
COURTS. 

Circuit  courts  (continued) : 

CONCURRENT    JURISDICTION    WITH    THE    DISTRICT    COURTS. 

Over  hands  of  dcj'Utij  postmasters 171 

Cases  referred  to 172 

See  title  Post-offices. 

To  enforce  treaty  stipulations 172 

On  application  of  foreign  consuls 172 

May  issue  necessary  process 173 

May  arrest  and  imprison  offenders 173 

Foreign  consuls  to  bear  the  expense  173 

concurrent    jurisdiction   AVITH    state    COURTS. 

In  cases  where  the  United  States  is  a  party 1^9 

"  where  an  alien  is  a  party 140 

"  where  suit  is  between  citizens  of  different  states  .  140 

Can  not  refuse  to  act  in  cases  of  concurrent  jurisdiction  ....  140 

JURISDICTION   IN    OTHER   CASES. 

In  cases  pending  in  a  district  court,  when  district  judge  is 

unable  to  act 152 

Causes  to  be  certified  to  in  such  cases 153 

When  such  a  disahility  terminates  by  the  death  of  district 

judge,  cause  to  he  remanded   152 

To  appoint  commissioners  to  take  testimony.  ■. 154 

See  title  Commissioners. 

To  stay  execution  on  a  petition  for  a  new  trial 150 

See  title  New  trial. 

In  cases  pending  in  a  district  court,  when  district  judge  is 

interested 163 

How  such  cases  are  removejL 163 

Jurisdiction  full  and  complete 163 

In  cases  in  other  circuit  courts,  where  judge  is  interested.  169 

Such  cases  to  be  certified 169 


318         JURISDICTION  OF  THE  FEDERAL  COURTS. 

PAoa. 

COURTS. 

Circuit  courts  (continued) : 

JURISDICTION    IN    OTHER    CASES. 

Mode  of  removing  the  same 170 

To  have  full  cognizance  in  such  cases 170 

To  render  judgment  and  issue  execution 170 

Over  suits  brought  for  injuries  received  in  caring  for  the 
revenue    164 

APPELLATE    JURISDICTION. 

Generally    173 

Can  he  exercised  only  according  to  law 173 

From  final  decrees  in  civil  actions 174 

Transcript  in  such  cases 174 

Citation  thereon 174 

In  admiralty  cases    174,  177,  178 

A  statement  of  the  case  to  he  furnished 177 

Practice  changed  hy  the  law  of  1803 177 

From  final  decrees  in  state  courts  in  suits  on  forfeitures  . .  179 

On  what  conditions 179,  180 

In  proceedings  on  distress  w^arrants 180 

See  title  Distress  warrants. 

In  proceedings  on  habeas  corpus  under  the  McLeod  act  . .  181 

See  title  Habeas  corpus. 

ON    REMOVAL    OF    CAUSE    FROM    STATE    COURTS. 

Where  an  alien  is  sued 145 

Or  where  a  citizen  of  one  state  sues  a  citizen  of  another 

state 145,  146 

Mode  of  removal 147,  148 

Original  bail  to  be  discharged 148 

Attachment  to  hold  good 148 

Right  of  removal  cannot  he  withheld 145 

If  withheld,  all  proceedings^oid    146 

Defendants  must  all  ask  for  removal 146 

This  rule  confined  to  ca^es  where  the  judgment  must  he  joint,  146 
Defendants  may  remove  cause  at  different  times 146 


INDEX.  319 

Paob. 

COURTS. 
Circuit  courts  (continued) : 

ON  REMOVAL  OF  CAUSE  FROM  STATE  COURTS. 

Cause  will  he  remanded,  unless  all  the  defendants  remove  the 

same 146 

Application  to  remove  must  he  made  on  entering  appearance,  146 
Cause  can  not  he  removed  as  to  some,  and  not  as  to  others,  146-7 
Plaintiff  can   not,  hij  releasing  j^CLi't  of  the  deht  after  suit 

brought,  take  away  right  to  remove 147 

SucJi  causes  can  only  be  removed,  as  could  have  been  origin- 
ally in  the  circuit  court 147 

Only  when  a  citizen  is  a  plaintiff 147 

None  after  resting  two  terms 147 

Improperly  removed,  will  he  remanded 147 

"Where  parties  claim  lands   under    grants    from  different 

states   149 

Mode  of  removal 149,  150 

^             Applies  when  the  grants  are  from  different  states  though  ori- 
ginally they  formed  hut  one, 149 

Applies  to  inchoate  titles,  obtained  from  the  same  state,  and 
after  ratified  by  the  two  states  formed  out  of  that  original 
state 149 

Where  causes  are  commenced  for  some  act  done  under  the 

revenue  laws 165 

Defendant  may  have  such  removed 165 

Mode  of  removal 165 

Certiorari,  when  allowed  on  petition 166 

Habeas  corpus  cum  causa,  when  proper 166 

Duty  of  state  court 166 

Defendant  in  arrest,  marshal  to  take  charge  of 166 

Attachments  &c.  to  remain  in  force 166 

Proceedings  when  no  copy  of  the  record  or  proceedings 
below  can  be  obtained 167 


320  INDEX. 

Pagb. 

COURTS. 

District  courts  : 

general  provisions. 

By  whom  held 185 

Terms  of  regular  and  special 185 

Adjournments  of 185 

When  may  be  held  by  another  judge 185 

Effect  of  death  of  judge 186 

On  death  of  judge  of,  when  causes  will  be  remanded  from 

the  circuit  court 186 

In  what  districts  have  same  powers  as  circuit  courts 119 

District  judge  deemed  absent  when  not  present  judicially  136 

EXCLUSIVE    JURISDICTION. 

In  cases  of  admiralty  and  maritime  jurisdiction 189 

Admiralty  jurisdiction  extended  to  inland  waters 207 

'Principles  of  common  law  inapplicable 189 

Rules  of  pleading,  liberal 190 

To  follow  general  rules  of  admiralty 190 

Decisions  under  13  and  15  Rich.  II,  not  binding  on 190 

Jurisdiction  determined  by  subject  matter 190 

"            unlimited  as  to  subject  viatter 192 

"            limited  in  points  of  locality 192 

"            both  instance  and  prize 190 

How  far  English  admiralty  law  holds  in  instance  cases  —  190 

And  in  cases  of  prize 191 

Jurisdiction  as  complete  as  in  England 191 

"  attaches   to  court  first   acting,  when  state   or 

territorial  courts  have  a  concurrent  one 192 

Over  admiralty  torts 192 

May  order  property  redelivered 

Extent  of  admiralty  jurisdiction 

Set-offs  not  generally  admissible 

Decrees  final 191 

Revenue  jurisdiction,  extent  of 191 

In  cases  of  forfeitures 192 


INDEX.  321 

Paoe. 

COURTS. 

District  courts  (continued): 

EXCLUSIVE    JURISDICTION. 

In  cases  (j/* salvage 192 

"         of  MATERIAL    MEN 192 

"         of  COLLISION 192 

"          of  WAGES    192 

"         of  PILOTAGE 192 

"         of  HYPOTHECATION 192 

"          rf  BOTTOMRY    BONDS 192 

"         of  CHARTER    PARTIES 192 

"         of  BILLS    OF    RANSOM 192 

"       of  seizures 195 

On  land  and  on  water 191 

When  seizure  is  made  on  land,  trial  is  hy  a  jury 191 

When  on  water,  trial  hy  the  court 191 

When  seizure  is  made  on  high  seas  and  in  no  particular 

district,  when  tried 191 

When  seizure  is  made  in  some  district,  when  tried 191 

Foreign   man-of-war   can   not   he  lihelled  for   an   alleged 

illegal  seizure 193 

Jurisdiction  exclusive 192 

In  suits  respecting  consuls 196 

Jurisdiction  exclusive 193 

See  also  title  Consuls. 

In  cases  of  prize 201 

See  title  Prize. 

CONCURRENT    JURISDICTION    WITH    THE    CIRCUIT    COURTS. 

Over  crimes  and  offences 189  e^  seq.,  207 

Punishment  hy  whipping  aholishcd 1S9 

"                 pillory             "           189 

See  Circuit  courts. 

21 


322  INDEX. 

Paob. 

COURTS. 

District  courts  (continued) : 

CONCURRENT    JURISDICTION    WITH    THE    CIRCUIT    COURTS. 

In  suits  upon  assigned  debentures 200 

See  title  Debentures  assigned. 

In  suits  brought  by  the  United  States  of  its  officers,  whether 

amount  reaches  $100 204 

Extends  to  all  cases 155 

In  cases  of  piracy 206 

See  title  Piracy. 

In  cases  of  slave  trade -206 

See  title  Slave  trade. 

In  suits  brought  against  persons  obstructing  and  hindering 
government  surveyors , .   206 

In  cases  under  the  Indian  acts 207 

See  title  Circuit  courts. 

Over  suits  for  infraction  of  law,  regulating  steam  transpor- 
tation and  conveyances 207 

In  cases  arising  under  the  post-office  acts 210 

See  titles  Circuit  courts,  and  also 
Post-offices. 

To  enforce  treaty  stipulations 210 

See  title  Circuit  courts. 

appellate  jurisdiction. 

In  cases  of  distress  warrants 204 

See  title  Distress  warrants. 

In  cases  of  rejection  or  confirmation  of  California  land 
claims  by  board  of  commissioners 210 


INDEX.  323 

Pagb. 

COURTS. 

District  courts  (continued) : 

IN    OTHER    CASES. 

To  appoint  commissioners  to  qualify  appraisers  of  vessels 
and  other  property 196 

On  petition  for  remission  of  fines  and  penalties 197 

See  title  Fines. 

To  grant  injunctions 200 

See  title  Injunctions. 

Over  all  complaints  in  cases  of  captures 204 

In  suits  for  penalties 195 

Extent  of  revenue  jurisdiction  in  such  cases 204 

In  suits  brought  by  an  alien 196 

In  suits  brought  by  the  United  States 196 

District  of  Columbia  : 

circuit  court. 

Judges  of,  and  salary 219 

Terms  of,  see  Appendix. 

Adjournments  of 219 

Writs  and  processes  of,  how  tested 219 

General  jurisdiction  of 220 

Juries  of,  defined  hy  the  repealed  act  of  1801,  c7^.  4 220 

Has  all  necessary  powers 220 

May  issue  mandamus  to  government  officers 220 

Has  no  original  jurisdiction  in  cases  under  fifty  dollars  . . .  222 

Of  crimes  and  offences 220 

Of  cases  brought  by  the  United  States 221 

Of  cases  of  seizures 221 


324  INDEX. 

Page. 

COURTS. 
District  of  Columbia  (continued) : 

CIRCUIT    COURT. 

Of  suits  of  fines,  penalties 221 

Of  all  cases  when  either  party  resides  in  the  district 221 

Against  non-residents, 221 

None  generally,  unless  found  within  the  district 222 

In  some  cases,  same  as  supreme  court  chancery,  Maryland  223 
May  issue  attachments  against  absconding  debtors 223 

Same  power  as  levy  courts  of  Maryland 221 

To  deliver  up  fugitives  from  labor 222 

To  grant  licenses 223 

In  cases  of  altering,  &c.,  public  roads 223 

In  cases  of  discharging  insolvent  debtors 224 

A  citizen  of  the  district  cannot  he  discharged  hy  a  court  out 
of  it 224 

To  order  sale  of  infants'  real  estate 225 

To  appoint  trustees  over  property  of  religious  corporations  225 

In  cases  under  post-office  acts 226 

See  title  Circuit  courts,  and  also 

POST-OFFICES. 

In  cases  of  contested  claims  to  money,  awarded  by  board 

of  Mexican  commissioners 226 

May  issue  injunction  to  secretary  of  treasury 227 


INDEX.  325 

Faob. 

COURTS. 

District  of  Columbia  (continued): 

APPELLATE    JURISDICTION. 

From  criminal  court 227 

From  all  final  decisions 227 

May  reverse  such  decision 2~-7 

Or  reward  the  same "27 

Or  declare  a  new  trial 227 

From  Orphans'  courts 229 

Decisions  in  orphans'    court  may  he  reviewed  by  supreme 
court 229 

Fiom  Courts  of  registers  of  wills  229 

From  Justices'  courts 228 

Wlien  debt  exceeds  five  dollars 228 

Proceedings  to  be  summary 228 

Parties  may  demand  a  trial  by  jury 228 

Wlien  may  proceed  on  non-appearance  of  appellee 228 

When  appeal  to  be  to  the  next  circuit  court 228 

In  suits  brought  by  corporation  of  Georgetown 229 

DISTRICT    COURT. 

Judge  of 230 

general    JURISDICTION. 

iSame  as  other  distiict  courts 230 

appellate    JURISDICTION. 

From    decisions  of  commissioner   of  patents,  refusing  a 

patent 230-235 

Extent  of  power  on  such  appeal 232 

Effect  of  decision  of  the  judge 232 

Appellate  powers,  special  and  litnited 233 

Only  exists  when  there  are  contending  parties 233 

No  appeal  from  decision  granting  a  patent 233 


326  INDEX. 

Page. 

COURTS. 

District  of  Columbia  (continued) : 

APPELLATE    JURISDICTION. 

Only  on  a  refusal  to  grant 233 

From  decisions  of  commissioners  of  patents  on  interfering 
amplications 232 

CRIMINAL    COURT. 

Judge  of,  and  salary 235 

Powers  of  judge  out  of  court , 237 

Regular  and  special  terms  of 235 

Who  to  hold,  judge  being  unable 235 

Writs  and  processes  of,  how  tested 236 

Circuit  court  to  have  jurisdiction  of  cases  when  district 
judge  is  related  to  any  of  the  parties 238 

GENERAL    JURISDICTION. 

Over  crimes  and  offences 236 

Over  all  against  the  laws  of  the  district,  as  full  as  circuit 
court  had 236 

"i  May  delay  sentence  or  execution  to  allow  a  writ  of  error  236 

To  adjourn  questions  of  law  to  the  circuit  court 237 

To  make  rules  of  practice 237 

To  hold  to  bail 237 

orphan's    COURTS. 

Judge  of,  and  salary 238 

Same  power  as  orphans'  court  of  Maryland   238 

Over  foreign  letters  of  administration 239 

Such  power  defined 239 

Puts  foreign  and  local  admimstrators  on  same  footing 239 

Power  limited  to  bringing  suits 239 

Effect  of  the  law  conferring  such  power 239 


INDEX.  327 

Paob. 

COURTS. 
District  of  Columbia  (continued) : 

COURTS  OF    REGISTER    OF    WILLS. 

Judge  of,  and  salary 238 

Same  power  as  similar  court  in  Maryland 238 

LEVY    COURTS. 

How  composed 240 

Jurisdiction  of 240,  241 

Not  entitled  to  half  of  Jines,  ^c 240 

justices'  courts. 

Acts  conferring  jurisdiction 241 

Justice  of  the  peace  is  an  officer  of  government 241 

Territorial  courts  : 

Are  not  constitutional  but  legislative  courts 245 

General  acts  of  Congress  do  not  apply  to 246 

GENERAL    JURISDICTION. 

In  cases  under  the  Indian  acts 246 

In  cases  under  post  office  acts 246 

To  appoint  commissioners 246 

Powers  of  such  officers 247 

See  titles  Circuit  courts  and  Commissioners. 

OREGON. 

Judicial  power,  how  vested 249 

Judicial  power,  extent  of 249 

Jurisdiction  of  district  court 250 

Appeals  from  district  to  supreme  court 250 

No  trial  by  jury  in  cases  removed 250 


328  INDEX. 

Pagb 

COURTS. 

Territorial  courts  (continued) : 

MINESOTA. 

Same  powers  as  in  Oregon 250 

Appeals  in  similar  cases 251 

First  six  days  of  term  constitutional 251 

Causes  have  a  preference 251 

NEW    MEXICO. 

Orjranized  and  regulated  as  in  Mincsota 251 

Courts  may  issue  writs  of  habeas  corpus,  where  same  can 
be  issued  from  courts  of  District  of  Columbia 251 

UTAH. 

As  in  Mew  Mexico 252 

Crimes  : 

How  and  where  tried 14,  17 

Unusual  punishments  not  be  inflicted 19 

When  indictment  jfbr 16 

May  be  tried  by  a  circuit  or  district  court 141,  207 

Capital  cases  only  hy  the  circuit  court 141,  207 

Need  not  he  tried  hy  circuit  court  in  the  county  where  they 
were  committed 142 

Criminals  : 

When  must  be  indicted 16 

Entitled  to  a  trial  by  jury 14 

Not  to  be  twice  put  in  jeopardy  for  same  offence 16 

What  is  a  har  to  a  second  trial,  and  what  not 17 

To  be  informed  of  accusation  against  them 18 

Need  not  be  witnesses  against  themselves 18 

To  be  confronted  with  witnesses  against  them 18 

Entitled  to  due  process  of  law 17 

To  have  compulsory  process  for  witnesses 18 

To  have  assistance  of  counsel 18 

When  may  have  separate  trial,  and  when  not 14 

Pardon,  hov)  pleaded 14 


INDEX.  329 

Paoi. 

Criminals  (continued) : 

Who  may  arrest  and  hold  to  bail G5-68 

When  bail  may  be  taken  of 65 

Witnesses  against,  may  be  recognized 66 

Witnesses  for,  may  be  recognized 87 

Witnesses  for,  removal  of 66 

Criminal  cases  : 

Can  not  he  carried  before  supreme  court  on  appeal 103 

Can  be  examined  only  on  certificate  of  division  of  opinion. .   lOli 

Damages : 

Can  not  be  assessed  in  supreme  court 113 

Death: 

Of  parties,  how  administrators  or  executors  may  be  substi- 
tuted       60 

In  crimes  punished  by,  who  may  bail 65-68 

Debentures  assigned: 

Circuit  and  distinct  courts  have  jurisdiction  of  suits  brought 
upon 152,  200 

Decree : 

Not  reviewed  after  writ  of  error,  except  when 39 

Not  to  affect  parties  out  of  the  district 84 

Hoic  long  a  lien  on  real  estate,  8fc 186 

Are  a  lien,  without  filing  a  transcript 187 

State  laws  requiring  filing  of  transcripts  do  not  opphj  to.  . .  187 

Hoiv  to  be  pleaded, 187 

Arc  binding  on  all  the  world 187 

Dedimts  potestatem: 

Testimony  may  be  taken  by 51 

Dejwsitions  by  are  not  de  bene  esse 51 


330  INDEX. 

Page. 

Default  : 

Judgment  as  for,  or  failure  to  produce  papers, 36 

Notice  for,  in  such  cases 37 

Judgment  on,  to  be  according  to  equity 45 

Judgment  on,  uncertain,  amount  to  be  assessed  by  jury. . .  45 

Demurrer : 

Judgment  on,  according  to  equity 45 

To  specify,  particularly  defects 65 

Deposition  : 

Equity  testimony  may  be  taken  by 52 

In  states  where  such  is  the  j^ractice 52 

Such  taking  is  discretionary  with  the  judge 52 

Depositons  de  bene  esse  : 

In  what  cases  may  be  taken 45 

Before  whom 48 

On  what  notice   48 

Mode  of  taking   49 

Disposition  of,  by  officer  taking 50 

Witnesses  compelled  to  testify 50 

In  admiralty  cases,  when 50 

"                  "       when  to  be  be  taken  down  by  clerk  . .  50 

'•                  "       when  used  on  appeal 50 

Wlicn  may  be  used  at  trial 51 

Can  be  taken  only  in  circuit  and  district  court 45 

Statute  must  be  strictly  followed 46 

Taking  of,  optional,  not  compulsory 46 

May  be  taken  in  all  cases  where  the  witness  is  100  miles  from 

place  of  trial 46 

Not  absolute,  witness  returning 46 

Can  be  read  only  on  proof  that  witness  cannot  attend 47 

Witness  may  he  attached  fur  not  ap2>earing  to  testify 47 

Witness  entitled  to  travel  fees 48 

Certificate  as  to  who  wrote  depositions 49 

Must  not  be  opened  out  of  court 50 


INDEX.  331 

Pacb 

Depositions  de  bene  esse  (continued)  : 

Cannot  he  talccn  in  case  of  a  seaman 46 

"  "  an  informer 51 

Dcpositiotis  under  a  dcdimus  potestatem  are  not 51 

Depositions  in  perpetuam  rei  memoriam  : 

May  be  admitted  at  discretion  of  judge 52,  53 

See  also  titles  Commission  and  Testimony. 

District  of  Columbia  : 

How  formed,  extent  of 217-218 

What  laws  are  adopted  in 218 

Effect  of  cession  upon  the  inhabitants 217 

Inhahitants  of  are  not  citizens  of  a  state 217 

Effect  of  cession,  in  respect  to  soil 217 

Statute  27  Elizabeth,  in  force  in 217 

Courts  in,  have  same  jurisdiction  as  respects  personal  pro- 
perty as  Etiglish  courts 218 

For  jurisdiction  of  courts  in,  see  title  Courts  ;  District 
OF  Columbia. 

District  courts  : 

See  title  Courts,  District. 

Distress  warrants  : 

Jurisdiction  of  district  court  in  cases  of ISO,  204 

General  jurisdiction 205 

May  stay  proceedings  on  same  by  injunction 205 

Lien  not  destroyed  by  such  stay 205 

Appeals  lie  from  decision  of  district  court ^180,  206 

Wlio  vraij  appeal ISO,  205 

When  United  States  can  not 205 

Constitutionality  of  act  doubted 205 

Division  of  opinion  of  circuit  judges  : 

In  case  of,  point  may  be  sent  to  supreme  court 114 

Decision  of  supreme  court  final 117 


332  INDEX. 

Page. 

Division  of  opinion  of  circuit  judges  (continued) : 

Cause  may  be  proceeded  in,  in  other  respects 117 

Imprisonment  or  punishment  not  allowed  in  cases  of  divi- 
sion    117 

Only  ijarticular  'point  and  not  the  wJiolc  cause  goes  up 114 

Points  must  he  clearly  stated 114 

Decree  affirmed,  if  court  above  equally  divided 114 

Can  not  exist  in  a  case  carried  from,  district   to   circuit 

court 114 

Does  not  apply  to  any  proceeding  subsequent  to  the  decision 

of  the  cause 114 

Nor  to  question  of  taxation  of  costs 115 

Nor  to  motion  for  a  new  trial 115 

•             Nor  to  cases  in  the  circuit  court  of  the  District  of  Columbia  115 

Nor  to  questions  of  'practice 115 

Confined  to  points  arising  at  the  trial 115 

Confined  to  points  of  late 115 

Sometimes  allowed,  when  judges  rather  doubted  than  differed  115 

Reasons  of  difference  not  to  be  stated  in  certificate 116 

Cases  referred  to  generally 116 

Endorsee : 

Suit  by 144 

May  sue  endorser,  though  could  not  maker 144 

Living  in  same  state  with  maker,  may  sue  endorser  living  in 

another  state 144 

Ha,s  only  same  rights  as  Ms  endorser 144 

EQUITY  : 

Suits  in,  not  sustained  when  there  is  a  remedy  at  law 38 

Jurisdiction,  independent  of  state  law 38 

same  as  in  England 38 

sustained  if  remedy  is  doubtful  or  uncertain. . .  38 

not  allowed  when  common  law  obtains 38 

and  vice  versa 38 

defmed  by  lQ)th  section,  act  1789,  chap.  20. . . .  38 

extent  of 39 


INDEX.  333 

Equity  (continued) : 

Jurisdiction,  when  suits  come  within  it 'jS 

"             v:hen  remedy  is  not  perfect  at  law 38 

Practice  in,  regulated  by  act  1792 39 

Suits  in,  answer  has  right  to  be  on  oath 39 

Equity  suits  : 

Testimony  in,  may  be  taken  by  deposition 52 

Such  taking  discretionary  with  the  judge 52 

On  appeal  of,  parol  testimony  to  appear  on  record 52 

Proper  mode  of  reviewing,  by  appeal Ill 

Evidence: 

See  titles  Testimony,  Depositions  and  Commissions. 

Execution  : 

Writs  of,  by  what  authority  issued 27 

Practice  in  respect  to,  how  regulated 27 

Same  as  in  the  several  states 72 

Form  of,  may  be  altered 79 

"                "             "     and  enlarged 77 

When  not  to  be  issued  by  supreme  court 113 

Executors : 

See  title  Administrators. 

Fines : 

Excessive,  not  to  be  imposed 19 

Remission  of 197 

Proceedings  by  judge  of  district  court 197 

Petition,  what  to  contain 199 

"         to  whom  to  be  presented .* 199 

Proceedings  of  judge  thereon 199 

Facts  to  be  sent  to  secretary  of  treasury 199 

Judge  bound  to  state  the  facts 197 


334  INDEX. 

Paob. 

Fines  (continued) : 

Stafcmc/it  of  claimant  not  legal  irroof. 197 

Wlien  remission  may  he  made 198 

WheiJicr  after  imyment 198 

Remission  must  he  according  to  laic 198 

"         may  he  after  final  judgment 198 

"         can  not  he  of  collector^  share  alone 198 

Refusal  to  reriiit  not  considered  hy  the  court  on  questions  of 

forfeiture 199 

None  in  cases  of  offences 199 

Petition  for  ?mist  he  verified 197 

"       notice  of,  to  whom  given 197 

Judge  not  to  act,  unless  forfeiture  is  proved  or  ad/mitted. . .  .  197 

Seretary  not  to  remit,  unless  forfeiture  is  proved  or  achnitted  197 

Good  beiiavior  : 

Meaning  of  the  words 5 

Federal  courts  may  hold  to 82 

Habeas  corpus  : 

Federal  courts  may  issue 25,  28 

When  not  to  issue 40 

When  persons  in  confinement  under  U.  S.  law 30 

When  persons  confined  for  an  act  done  by  authority  of  a 

foreign  government 30 

No  law  prcscrihing  when  it  may  issue 28 

Is  in  nature  of  a  writ  of  error 28 

When  to  persons  in  confinement 28 

Confined  on  civil  or  criminal  process 28 

Nature  and  poicer  of  writ 28 

SUPREME    COURT. 

Will  not  issue  same,  until  power  is  shown 28 

Can  issue  it  only  as  a  jxi^rt  of  appellate  jurisdiction 28 

To  those  confined  under  orders  of  federal  coiirts 28 

Not  to  those  confined  under  orders  of  state  courts 29 

Nor  to  those  imprisoned  for  contempt 29 

f          When  cases  of  may  be  appealed  to  supreme  court, 119 


INDEX.  335 

Paob. 

Habeas  corpus  (continued) : 

CIRCUIT    COUUT. 

Can  not  issue  to  f/iose  confined  under  orders  of  a  state  court.  29 
Sentence  oj"  court  below  having  jurisdiction,  can  not  he  looked 

into  on  tJiis  icrit 29 

M.ay  inquire  whether  capias  rightfully  issued 29 

Can  not  issue  to  discharge  a  secretary  of  legation  from  pro- 
cess of  a  state  court 29 

Appellate  jurisdiction  under  McLeod  act 181 

DISTRICT    COURT. 

In  cases  under  the  army  laws 29 

Habeas  corpus  ad  testificandum  : 

Federal  courts  may  issue 28 

Commissioners  can  not  issue 55 

Indians  : 

Tribes  of,  are  not  foreign  states 10,  28 

Indictment: 

For  crimes  when  necessary,  and  when  not 16 

Informer  : 

Deposition  of,  can  not  he  taken  de  hone  esse 51 

When  liable  for  costs 261,  262 

Injunctions  : 

Not  to  be  granted  except  on  notice 35 

Nor  to  stay  proceedings  in  state  courts 35 

Great  caution  required  in  its  exercise 31 

Is  the  strong  arm  of  equity 31 

Arc  all  special 32 

Not  necessarily  a  supercedeas 32 

Can  not  issue  from  state  to  federal  courts 32 

Lies  against  a  person  abusing  exercise  of  authority  under  a 

state  law 32 


336  INDEX. 

Pagb. 

Injunctions  (continued) : 

Will  not  lie  to  restrain  the  perforniance  of  a  mere  ministe- 
rial act 32 

But  may,  in  some  certain  cases,  from  circuit  court  of  Dis- 
trict of  Columbia 220 

Must  be  on  notice 33 

Only  short  notice  necessary  on  application  to  a  court 33 

Longer  notice  on  application  to  a  single  judge 33 

Circumstances  of  each  case  must  govern 32 

SUPREME    COURT. 

"When  may  be  issued  by 31 

Has  been  granted  to  stay  money  in  a  marshal's  hands,  be- 
longing to  a  state 32 

And  to  quiet  title 33 

And  to  prevent  a  transfer  of  a  specific  article 33 

And  to  stay  proceedings  after  writ  of  error  tvas  issued 33 

Has  been  refused  to  parties  claiming  lands  in  a  territory  in 

dispute  between  two  states 33 

Must  be  on  notice 33 

Short  notice  and  long  notice,  when 33 

Circumstances  of  each  case  to  govern 33 

CIRCUIT    COURT. 

When  may  be  issued  by 31 

Only  on  notice 33 

When  judgment  has  been  g?  anted  by  surprise 34 

To  stay  perpetually  a  judgment  obtained  by  fraud 34 

To  stay  an  official  act  under  a  state  law,  when  such  law  is 

repugnant  to  the  Constitution  of  the  United  States 34 

Can  circuit  judge  grant  out  of  his  circuit 34 

In  cases  of  patent  rights 34 

General  causes  for  granting 34 

DISTRICT    COURTS. 

Judges  of,  have  same  power  to  grant  as  justices  of  supreme 

court 35,  200 

In  cases  before  circuit  courts 35,  200 


INDEX.  337 

rAr;K. 

Injunctions  (continued) : 

In  such  cases  to  continue  only  to  next  term  of  circuit  court  35 

But  not  to  issue  if  party  can  apply  to  circuit  court  for. .  .  .  35 

In  cases  of  treasury  warrants 35,  201 

CIRCUIT    COURT    OF    DISTRICT    OF    COLUMBIA. 

In  cases    of  contested   claim,  for  moneys  awarded  under 
Mexican  commission 227 

Issues  of  fact: 

When  to  be  tried  by  a  jury 88 

Journeys  account : 

CoTitinuancc  by,  abolished 61 

Judges  op  federal  courts : 

Term  of  office,  during  good  behavior 90 

Salary  of,  not  decreased  during  tenn  of  office 90 

Oath  of  office 90 

Can  not  practice  law 90 

Territorial  07ies  are  not  constitutional 5 

Good   behavior,  propriety   of  having   their    term  of  office 

limited  by 5 

Permanency  of  office,  necessity  of 5 

supreme  court. 

Judges  of,  number  of, 95 

Precedence  of 95 

List  of,  see  Ai)pendix. 

CIRCUIT    COURT. 

Judges  of 135 

Have  no  separate  commissions I35 

See  also  title  Courts,  Circuit. 

DISTRICT    COURTS. 

Judges  of 185 

See  also  titles  Courts,  District  of  Columbia,  and  Terri- 
torial. 

22 


338  INDEX. 

Paok. 

Judgment: 

To  be  according  to  equity  on  default  or  demurrer 45 

Amount  of,  on  a  default  uncertain,  to  be  assessed  by  a  jury     45 

To  be  accordinsf  to  the  riffht  of  the  case    64-65 

Of  nonsuit,  when  may  he  against  plaintiff 19,    41 

Of  nonsuit,  on  failure  to  pi'oduce  papers 36 

On  reversal 113,   179 

On  appeal  and  writ  of  error,  in  Circuit  Court 179 

Judgment  of  default  : 
See  title  Default. 

Judgment  of  nonsuit  : 
See  title  Nonsuit. 

Judicial  power: 

Where  vested   3 

Extent  of 6 

General  decision  respecting 11 

Does  not  extend  to  suits  against  a  state  by  citizens  of  other 

states 20 

Jurisdiction  of  federal  courts  : 

Is  limited 3 

Depends  of  the  Constitution  and  the  laws 3 

When  hascd  on  the  character  of  cause 6 

When  hascd  on  the  cJiaracter  of  parties 7 

Determined  hy  p)arties  to  the  record,  and  not  those  in  interest     21 

Is  limited  in  suits  against  a  state 20 

Of  supreme  court  defined  by  the  Constitution 12,   14 

Inferior  courts  defined  hy  Congress 4 

Can  not  he  conferred,  on  supreme  court  hy  consent 98 

Hut  may  on  circuit  courts 141 

Ohjection  to,  viaived  hy  appearance 143 

See  also  titles  Courts  and  Admiralty. 


INDEX.  3  39 

Pack. 

Jury  : 

To  assess  judgment  on  default  when  amount  uncertain ....  45 
When  may  he  dtscJiargcd,  without  consent  of  priscmer  . .    1(3,  17 
Facts  found  by,  can  not  be  re-examined,  except  by  com- 
mon law 18 

Jury  trial  : 

When  in  cases  in  the  federal  courts 88 

Secured  in  criminal  cases 17 

But  not  in  impeachments 15 

Accused  entitled  to 17 

Where  to  be  had 15,  17 

In  all  cases  at  law,  where  over  twenty  dollars  is  at  issue. .  18 

In  all  cases  except  in  equity  and  admiralty 18 

Plaintiff  can  not  be  nonsuited  except  he  consents 19,  41 

When  there  is  a  plain  remedy  at  law 88 

In  cases  of  seizures  on  land 89 

But  nut  of  seizures  on  water 89 

Nor  on  information  under  act  1794 89 

Has  been  hut  one  in  the  supreme  court   88 

What  is  a  bar  to  a  second  one,  and  what  not 17 

Separate,  v^hen  allowed 14 

Laws  of  statk  : 

See  title  State  laws. 

Lktters  rogatory: 

Isstie  to  a  foreign  government  when  a  commission  not  permit- 
ted to  be  executed 55 

Form  of. 56 

Sufficient  if  all  the  interrogatories  are  substantially  answered  56 

Mandamus : 

Uy  what  authority  issued 25 


340  INDEX. 

Pagb. 

Mandamus  (continued) : 

SUPREME    COURT. 

May  issue  in  cases  warranted  by  the  usages  and  principles 

of  law 101 

To  inferior  courts 26,  101 

And  to  persons  holding  office 26,  102 

But  power  to  issue  to  jyersons  holding  office  is  unconstitu- 
tional     26,  101 

Such  power  only  resides  in  circuit  court  of  the  District  of 

Columbia 26,  220 

Does  not  lie  to  control  discretion  of  an  inferior  court. . .   25,  101 

Nor  to  correct  an  erroneous  judgment 25 

Nor  to  compel  the  circuit  court  to  adopt  particular  proceed- 
ings    75 

Nor  to  a  district  judge  to  compel  the  exercise  of  a  discretion- 
ary power 101 

Liies  to  compel  the  execution  of  a  sentence 102 

And  the  signing  of  a  hill  of  exceptions 102 

In  case  of  removal  of  an  attorney  of  an  inferior  court 102 

To  stay  proceedings  in  a  court  hclow  tvhen  the  United  States 

is  a  party 102 

CIRCUIT    COURT. 

Confined  to  cases  necessary  for  exercise  of  its  jurisdiction . .  .  26 

Is  not  issued  after  the  practice  of  the  Icing's  bench 26 

Lies  to  a  collector  to  issue  a  clearance 26 

To  a  state  court  to  transfer  a  cause 26 

To  a  district  court  to  compel  a  judgment 27 

But  not  to  expunge  amendments 27 

DISTRICT    COURT. 

Covfined  to  cases  necessary  for  exercise  of  its  jurisdiction. . .     21 

Matter  in  dispute  : 

When  not  necessary  to  be  stated  in  the  pleading  may  be 

proved 104 

Does  not  apply  to  criminal  actions 105 


INDEX.  341 

Paoi. 

Matter  in  dispute  (continued) : 

Nor  to  cases  brought  from  state  courts  arising  under  the 

Const,  laws  and  treaties  of  the  United  States 105 

Must  he  shown  afjirmatively 105 

Must  he  sufficient  in  each  suit 105 

Can  not  he  aggregated  from  many 105 

SUPREME    COURT. 

Is  measured  as  the  case  stands  in  such  court,  and  not  as  case 

was  in  the  court  belotv 104 

Is  the  measure  of  writ  of  en-or  or  appeal 106 

But  not  in  revenue  cases 108 

CIRCUIT    COURT. 

Is  the  amount  laid  in  the  declaration 140 

Whether  suit  is  original  or  hrought  from  a  district  court.  .  140 

Ne  exeat  : 

May  lie  granted  l)y  puprcme  or  circuit  court 31 

Or  by  a  judge  thereof,  when  court  could  grant 31 

But  not  until  suit  is  commenced 33 

Nor  except  on  proof  defendant  is  soon  to  leave  country ...  34 

Not  without  a  jjositive  affidavit  of  a  debt  due 31 

Can  not  be  granted  by  a  district  court 31 

New  trials  : 

May  be  granted  where  there  has  been  a  trial  by  jury 39 

Granted  according  to  the  principles  of  the  common  law  . .  40 

•'      where  iiTong  instructioiis  Jiave  been  given  to  a  jury  39 

"      where  jnopcr  evidence  is  rejected 39 

"      in  cases  of  surprise  of  new  evidence 40 

Docs  not  suspend  entering  judgment 39 

Execution  will  be  stayed  on 39 

Not  granted  after  a  writ  (f  error,  except  for  error  apparent 

on  the  record,  or  for  evidence  discovered  since  the  decree. .  39 

Nor  on  account  of  cumulative  evidence 40 

In  a'iminal  as  well  as  in  civil  cases 40 


342  INDEX. 

Paob. 

New  trials  (continued): 

But  not  in  a  capital  case  after  verdict 40 

May  he  where  jury  have  been  discharged  icithout  verdict. .  .  40 

]^ot  against  strong  circumstances  of  equity 40 

Nor  except  injustice  has  been  done 40 

Or  justice  requires  it 40 

When  counts  do  not  support  the  verdict 41 

Not  when  hill  of  exceptions  have  been  taken 41 

Unless  they  are  waived 41 

Question  on  granting  is,  are  the  judges  satisfied  with  the 

verdict 41 

General  cases  in  respect  to 41 

On  petition  for,  circuit  court  may  stay  execution 160 

Granted,  execution  is  permanently  stayed 150 

"       judgment  is  void 150 

Nonsuit  : 

Judgment  of,  can  not  he  ordered  against  plaintiff  without  his 

consent         19>     41 

Judgment  of,  on  failure  to  produce  papers 36 

On  what  notice  in  such  cases 37 

Notaries  public: 

May  administer  oaths 41 

Oaths: 

May  be  administered  by  courts 41 

"                  "                     commissioners 41,  154 

May  he  administered  by  notaries  public 41 

Offences: 

See  title  Crimes. 

Courts  may  commit  for 19 

Papers : 

Production  of - 35 


INDEX.  343 

VxaB 

Pai'krs  (coiUinued) : 

Necessary  ones,  in  the  possession  of  parlies  to  a  suit,  may 

be  demanded 35 

On  neglect  to  produce,  judgment  of  nonsuit  or  of  default 

will  be  ordered   36 

Demandable  in  actions  at  law  or  in  equity 36 

Substitute  Jor  a  bill  of  discovery 35 

Suggestion  of  possession  enough  to  require  productiott 36 

Possession  of  denied,  it  must  be  proved  to  derive  advantage 

from  non-production 36 

Mere  notice  to  produce  not  sufficient  to  require  production  of 

a  paper  defeating  title  of  the  possessor 36 

Effect  of  non-production 36 

Denial  of  possession  may  be  shovm  false 36 

^              Notice  must  specify  that  judgment  will  be  ashed,  if  it  is  in- 
tended to  tahc  it 37 

For  judgment  of  non-suit,  order  must  be  obtained 37 

What  sufficient  notice 37 

Production  can  not  be  called  for  before  trial  commences 37 

Afft.  of  party  interested  sufficient  to  obtain  order  to  produce  37 

Production  not  ordered  in  a  proceeding  in  rein 37 

Nor  when  papers  will  subject  the  party  to  a  forfeiture 37 

Paruon : 

Must  he  pleaded 14 

Considered  as  a  public  law 14 

Part IKS : 

Death  of,  executors  and  administrators  may  be  cited 60 

When  all  are  not  in  district,  courts  may  proceed 84 

Such  parties  not  bound  by  decrees 84 

Non-joinder  of  such,  no  reason  of  abatement 85 

Such  parties  may  appear  voluntarily 85 

Law  respecting  such,  does  not  affect  general  jurisdiction —  .  84 

Only  rcyncdies  former  difficulties 84 

May  appear  by  attorney,  or  counsel,  or  in  person 71 

Multiplying  proceedings  liable  to  costs   71 


344  INDEX. 

Page. 

Patents : 

Cases  respecting,  cognizable  by  circuit  courts 156 

SucJi  jurisdiction  is  exclusive 156 

Extends  to  all  cases 156 

May  be  carried  before  supreme  court,  as  other  cases 117 

And  in  other  cases  deemed  reasonable 118 

Meaning  of  word  "  reasonable  " 118 

W7wle  case  goes  up  in  *'  reasonable  "  cases 118 

14  and  15  sec.  of  act  1836  apply  to  patents  obtained  before 

tJieir  passage 117 

Peace : 

Federal  courts  may  hold  to 82 

Penalties  :  b 

Pecuniary,  in  what  courts  suits  may  be  instituted  for 85 

Remission  of,  see  title  Fines. 

Perishable  property: 

Judge  may   deliver  to  claimants  or  direct  to  be  sold,  in 

vacation  83 

Notice  on  such  proceeding 83 

Phrases  and  words,  meaning  of: 

"  Admiralty" 194 

"  Agreeable  to  principles  and  usages  of  law" 25 

"Appear' Ill,  176 

"  Cases  " 9 

"  Cases  in  law  " 18 

"  Civil  causes  of  admiralty  and  maritime  jurisdiction  "  —  -  89 

"  Common  law  remedy  " 195 

"  Controversies  " 9 

"  Courts  of  law  and  equity  " 194 

••  Good  behavior  " 5 


INDEX.  345 

PiiKAsKs  AND  WORDS  (continued) : 

"  Inferior  courts  " 4 

"  Jeopardy  " 16 

"  Suits  at  common  law  " 18 

"  Usages  and  principles  of  law  "    194 

"  Writ  of  error  " Ill 

Pillory  : 

Punishment  hy,  abolished 189 

Piracy : 

Cases  respecting,  cognizable    by   the  circuit  and    district 

courts    158,  206 

State  courts  also  have  jurisdiction   159 

Term  defined 159 

Congress  may  define  what  is 158 

When  robbery  is,  and  when  not 158 

Co7n?non  laic  may  also  be  referred  to  for  definition 158 

Not  the  same  as  murder 158 

Prize: 

District  courts  have  exclusive  jurisdiction  of 201,  203 

Act  1812,  is  it  in  force  ?   query 201 

Vested  exchisively  in  district  courts 202 

Restitution  may  be  ordered 202 

Sentences  of  continetUal  courts  may  be  enforced 202 

/Zizrc  no  jurisdiction  of  capture  by  a  common  cruiser  (fa 

belligerent  power 202 

When  over  captures  by  foreign  vessels 203 

Post-office  : 

Cases    respectincj,    rn^iiizablc   in   the    circuit    and  district 

and  territorial  courts 170,  210,  226 

Character  of  right  (f  jwstmaster-gcneral  to  sue 170 

Negligence  of  an  assistant  can  not  be  shoicn  on  an  issue  of 

negligence  of  a  postmaster 171 

Postmaster,   ivhcn  liable  for  negligence 171 


346  INDEX. 

Pagb. 

Post-office  (continued) : 

Neglect,  of  a  postmaster-general  to  sue  for  a  penalty  does  not 

discharge  postmaster  and  his  sureties    171 

Nor  an  order  to  retain  money I'^'l 

Laches  of  officer  no  waiver  of  claim  of  government 171 

Sureties,  tchcn  released 1 '  1 

Jurisdiction  of  circuit  courts  on  bonds  of  deputy  postmasters  172 

Cases  generally  referred  to 171 

Process  mesne  : 

Form  of,  at  law,  same  as  in  respective  states 72 

"  in  admiralty,  to  be  according  to  the  principles  of 

admiralty 77 

Form  of,  in  equity,  to  be  according  to  the  principles  of 

equity 77 

Form  of,  may  be  altered 78 

Final    79 

Same  as  in  each  state 79 

May  be  altered 79 

How  tested,  and  in  whose  name 80 

Of  supreme  court  to  be  in  the  name  of  the  President 72 

To  be  sealed 80 

Not  governed  by  state  laws  when  such  are  adopted 68 

Proctors : 

When  liable  to  costs 71 

Prohibition  : 

Supreme  court  may  issue  to  district  courts  in  admiralty 
cases 101 

In  case  of  libel  when  court  had  no  jurisdiction 101 

Issues  according  to  the  principles  of  the  common  law 101 

Punishments  : 

Unusual  ones  not  to  be  inflicted 19 

Public  ministers: 

Suits  affecting,  where  tried 6,  97  and  notes 


INDEX.  347 

Paoe. 

Recognizancks  : 

Of  witnesses,  against  accused  when  taken <iG 

"              in  favor  of  accused 87 

Should  state  ohligation  and  condition 86 

Should  not  vary  materially  from  warrant 86 

Party  to,  should  be  called  before forfcitvre 86 

Ca7i  non-aj)j)carance  of  recognizor  be  jfrovcd  by  jiarol  ?  query  86 
Forfeited,  may  be  susj)endcd  or  discharged  f  j>arty  ajqx'ars 

at  a  succeeding  term 86 

Penalty  of  when  may  be  remitted 85 

Remission  of  a  common  law  right 85 

And  independent  of  statute 85 

Object  of  a  recognizance 85 

Rehearing : 

Kests  in  the  discretion  of  the  court 40 

Not  allowed  at  a  subsequent  term 40 

Removal  of  causes  from  state  courts: 

See  title  Courts,  circuit,  appellatk  jurisdiction. 

Replevin : 

Practice  in 77 

Review  : 

Not  allowed  after  writ  of  error  brought 39 

Rules  : 

Federal  courts  may  make  their  own 44 

Can  not  be  repugnant  to  law 44 

Courts  have  power  to  make  unless  forbidden  by  law 44 

Courts  can  mould  their  rules  so  as  not  to  work  injustice. ...  44 

Sale  : 

See  title  Perishable  property. 


348  INDEX. 

Paob. 

Scire  facias  : 

Federal  courts  may  issue ^5 

On  death  of  parties 61 

Seal  : 

Of  suprcvie  court,  design  of. 72 

Circuit  court,  design  of 72 

Of  court,  to  be  affixed  to  process 80 

Slave  trade: 

Acts  respecting 160-162 

Cases  respecting,  cognizable    by  the  circuit  and    district 

courts    160,  206 

Vessel  forfeited,  as  soon  as  preparations  are  completed,  and 

before  sailing 160 

Object  of  the  act  of  1794 160 

Guilty  intention  works  forfeiture 160 

'Building  a  vessel  for  slave  trade,  no  forfeiture  for 160 

Slaves  can  not  be  carried  as  freight 160 

Under  act  of  1800  vessel  seized,  though  no  slaves  actually 

taken  on  board,  is  forfeited 160 

Act  1794  applies  to  all  concerned  in  the  slave  trade 161 

Act  1 803  does  not  apply  to  colored  seamen 161 

Under  act  1818,  vessel  must  sail  out  of  port 161 

"              form  of  indictment 161 

Not  piracy  by  law  of  nations 161 

Cases  generally  referred  to 161 

Forfeitures,  under  such  acts,  are  admiralty  cases 195 

States  : 

Suits  where  a  state  is  a  party,  where  tried 9 

Suits  where  citizens  of  states  are  parties,  where  tried. ...  10 

Suits  respecting  boundaries  between,  where  tried 10 

Kind  rf  interest  necessary  to  make  one  a  party 99 

No  mode  of  proceeding  declared  when  state  is  a  party 98 

As  to  mode  adopted  in  practice 99 


INDEX.  349 

Paob. 

States  (continued) : 

Can  not  be  sued  by  citizens  of  other  or  foreign  states .   20-21 

But  exemption  only  applies  to  cases  when  states  are  parties 

to  the  record 21 

Indian  tribes  are  not  foreign  ones 10,  98 

District  of  Columbia  is  not  a 10 

A  corporation  is  a  citizen  of  a 9,  10 

State  laws  : 

Are  taken  notice  of  by  federal  courts 4 

HoiD  authenticated 4 

Adopted  as  rules  of  decision,  in  trials  of  common  law. ...  68 

Must  not  be  repugnant  to  Constitution 76 

But  do  not  apply  to  process  or  practice 68,  76 

Nor  corf er  jurisdiction 69 

Only  help  ascertain  the  right  and  assist  in  the  remedy 69 

Are  only  rules  of  decision 69,  76 

Govern  as  to  evidence 69 

Adopted  only  as  to  local  rights  and  title 69 

Not  as  to  general  contracts 70 

As  to  written  instruments 70 

As  to  commercial  laio 70 

Acts  of  limitation  adopted 70 

As  rules  of  property 70 

Adopted  in  cases  depending  on  such  laws 70 

How  far  obligatory 76 

Effect  of  not  adopting 76 

Include  lares  regarding  hail  and  imprisonment 75 

Include  construction  of  state  courts 70 

Include  laws  respecting  rights,  duties  and  conduct  of  officers  75 

Include  laics  respecting  service  of  process 75 

Cases  generally  referred  to 71 

Statutes  cited  and  referred  to : 

1789,  ch.  20,  §  1.  Supreme  court,  precedence  of  judges 95 

"         §  3.  District  courts,  and  terras  of 185 


350  INDEX. 

Faoe. 

Statutes  cited  and  referrkd  to  (continued): 

1789,  ch.  20,  §  4.  Circuit  courts,  by  whom  held 135 

"         §  6.  District  judge,  death  of 186 

"         §  7.  Clerks,  appointment  of 91 

§  8.  Judges,  oath  of 90 

"         §  9.  District  courts,  jurisdiction  of 189,  196 

§  9.  Costs 256,  260 

"         §  10.  Supreme    court,     appellate    jurisdiction    from 

Kentucky 128 

"        §§  9,  12,  13.  Issues  of  fact,  how  tried 88 

§  11.  Costs 256,  260 

"         §  11.  Circuit  courts,  original  and  exclusive  and  con- 
current and  appellate  jurisdiction  of 139,  173 

"         §12.  Circuit  courts  jurisdiction,  causes  removed  from 

state  courts 145,  149 

'•         §  13.  Supreme  court,  mandamus 101 

«'         §  13.  Supreme  court,  original  and  exclusive  jurisdic- 
tion        98 

"         §  13.  Supreme  court,  appellate  jurisdiction 104 

"         §  13.  Supreme  court,  prohibition 101 

"         §  14.  Issuing  w^rits 25-27 

"         §  15.  Production  of  papers 35 

"         §  16.  Equity  suits,  when  sustained 38 

*'         §  17.  Contempts,  punishment  of 42 

§  17.  Oaths 41 

"         §  17.  New  trials 39 

"         §  17.  Rules,  power  to  make 44 

"         §  18.  Circuit  courts,  staying  execution 150 

"         §  19.  Circuit  courts,  statement  of  case 151 

'«         §  20.  Circuit  courts,  when  to  allow  costs 151 

§  20.  Costs   256,  260 

"         §  21.  Circuit  court,  appellate  jurisdiction 176 

§  21.  Costs 256 

"         §  22.  Supreme  court,  appellate  jurisdiction  by  writ 

of  error 104 

"         §  22.  Costs 256,  260 

"         §23.  Writ  of  error,  and  when  a  supersedeas. .    109,   174 


I 


INDEX.  351 

Pass. 

Statutes  cited  and  referred  to  (continued) : 

1789,  ch.  20,  §  23.  Costs 256,  260 

"         §  24.  Judji^mcnt  on  reversiil 113,   179 

"         §  25.  Supreme  court,  appellate  jurisdiction  from  state 

courts 120-125 

•'         §  26.  Judgment,  when  according  to  equity 45 

"         §  30.  Depositions  de  bene  esse 45-52 

"         §  31.  Executors,  appearance  of 60-63 

§  32.  Amendments   62-65 

§  33.  Arrest  and  bail 65-67 

"         §  34.  Slate  laws,  adoption  of 68-71 

•'         §  35.  Causes,  management  of 71 

§  35.  Costs 256,  260 

ch.  21,  §  2.  Costs 257,  275 

1790,  ch.  13,  Costs 257 

1791,  ch.     8,  Costs 257 

"     22,  Costs 257 

1792,  ch.  36,  §  1.  Process,  test  and  seal  of 80 

§  2.  Process,  form  of 72-78 

§  3.  Costs '. 257 

§  4.  Costs 258,  260,  261 

§  5.  Costs 258,  260,  261 

§  8.  Costs 257 

1793,  ch.  20,  Costs 258,  260 

"      ch.  22,  §  1.  Circuit  courts,  by  whom  held 135 

"  §  3.  Circuit  courts,  criminal  terms  of 137 

"  §  4.  Bail,  by  whom  taken 67 

"  §  5.  Ne  exeat  and  injunction 31-35 

"  §  7.  Power  to  make  rules 44 

1794,  ch.     3.         Security  on  Wrii  of  Error 110,   176 

"     11,  §  1.  Slave  trade 160,  206 

"     64.  §  1.  Appointment  of  commissioners  to  qualify  ap- 
praisers      196 

1795,  ch.  28.         Costs 258 

1796,  ch.   11.         Costs 258 

ch.  48,  §  2.  Costs 258 

1797,  ch.  13.  §  1.  Remission  of  fines  and  penalties 197-201 


352  INDEX. 

Paob. 

Statutes  cited  and  rkferred  to  (continued) : 

1798,  ch.  66,  §  2.  Alien  enemies,  arrest  of 80 

ch.  83.          To  hold  to  peace 82 

1799,  ch.  12,  §§  6,  7.  District  courts,  adjournment  of 185 

"           §  7.  Supreme  court,  adjournment  of 96 

"           §  7.  Circuit  courts,  adjournments  of 138 

ch.  19,  §       Costs 258,  259,  260,  262,  263 

ch.  22,  §  71.  Costs 259,  261 

"           §80.  Assigned  debentures,  jurisd'n  of  suits  on.   152,  200 

1800,  ch.  51,  §§  1,  5.  Slave  trade 162,  206 

1801,  ch.  15,  §  1.  District  of  Columbia,  laws  adopted  in 218 

"         §  3.  Circuit  court  District  Columbia,  by  whom  held, 

and  general  powers 219,  220 

"         §  3.  Circuit  court  District  Columbia,  criminal  juris- 
diction     220 

"         §6.  Jurisdiction  circuit  court,  District  of  Columbia. .   221 

"         §  8.  Supreme  court,  appellate  jurisdiction  from  cir- 
cuit court  of 125 

"       §  10.  Salary  chief  justice  circuit  court.  District  Colum- 
bia     219 

"       §11.  Jurisdiction  justices' courts,  District  of  Columbia  241 

"       §  12.  Appellate  jurisdiction  circuit  court,  District  of 

Columbia,  juris,  reg.  and  orp.  court 229,  238 

"       §  15.  Teste  of  writs,  &c.,  circuit  court,  District  Co- 
lumbia      219 

ch.  24,  §§  1,6.  Jurisdiction  circuit  coixrt,  Dist.  Columbia  221,  222 

"         §  4.  "  levy  courts,  "  240 

1802,  ch.  31,  §  1.  Supreme  court,  powers  to  make  orders,  &c 96 

"         §  4.  Circuit  court,  by  whom  held 135 

"         §  5.  Circuit  court  judge,  on  appeal,  a  writ  of  error. .   179 
"         §  6.  Supreme  court,  appellate  jurisdiction  on  division 

of  opinion    114-117 

"       §  24.  Jurisdiction  district  court,  District  of  Columbia  230 

"       §  25.  Depositions  in  equity 52 

ch.  52,  §§  1,  3,  5,  9.  Circuit  court,  Dist.  Columbia  219,  222,  223 

1803,  ch.  10,  §  1.  Slave  trade 162,  206 

ch,  31,         Jurisdiction  circuit  court  District  of  Columbia. .   224 


INDEX.  353 

Paob. 

Statutes  cited  and  referred  to  (continued) : 

1803,  ch.  40,  §2.  Supreme  court,  jurisdiction  by  ujqjcal ll(t 

eh.  40.         Circuit  court,  appellate  jurisdiction 178 

1805,  ch.  38,         Supreme  court,  appellate  jurisd'n  from  territories  127 
180G,  ch.  3G,  §  2.  .Jurisdiction  circuit  court.  District  of  Columbia  224 

1807,  ch.  13,         Injunctions 35,  200 

ch.  19,         Costs 259,  261 

ch.  22,  §  9.  Slave  trade 1G2,  206 

1809,  ch.  27,  §  1.  Circuit   courts'   jurisdtion,    inability   of  district 

judge    152—154 

ISll,  ch.  40,         Salary  justice  circuit  court,  District  of  Columbia  219 

1812,  ch.    5,         Judges  not  to  practice  law 90 

ch.  25,         Oaths 41  (n) 

"  Deposition  in  perpctuara  rei  memoriam, 53 

"      §  1.  Commissioners,  how  appointed 154 

ch.  106,  §  2.  Jurisdiction  circuit  court.  District  of  Columbia. .   225 
ch.  107,  §  11.  Orphans' court,  "  "       239,240 

ch.  107,  §  6.  Prize  cases,  jurisdiction  over 201-203 

ch.  117,  §  7.  Jurisdiction  circuit  court.  District  of  Columbia. .   223 
"  Levy  courts,  "  "  . .    241 

1813,  ch.  14,  §  3.  Attorneys,  liable  for  costs 71,  259,  261,  264 

1814,  ch.  79,  Costs 259 

1815,  ch.  31,  Costs 260,  261 

ch.  101,  §2.  Circuit  court,  appellate  jurisdiction 179 

"  §  4.  Jurisdiction,  when  United  States  sue 155,  204 

1816,  ch.  39,  Supreme  court,  appellate  jurisdiction  from  cir- 

cuit court,  District  of  Columbia 126,   127 

"                  Supreme  court,  appeal  from  circuit  court,  Dis- 
trict Columbia,  when  a  supersedeas, 127 

1817,  ch.  30,  Commissioners,  powers  of 154 

1818,  ch.  88,  §  7.  Captures,  jurisdiction  in  cases  of 204 

ch.  91,  §§  2,  4.  Slave  trade 162,  206 

ch.  94,  Salary  judges  circuit  court,  District  of  Columbia  219 

1819,  ch.  19,  Jurisdisction  copy  right  cases 156 

"  Supreme  court,  appellate  jurisdiction  copyright 

cases 117 

ch.  27,  Supreme  court,  salaries 96 

23 


54  INDEX. 

Paob. 

Statutes  cited  and  referred  to  (continued) : 

1819,  ch.  77,  §  5.    Piracy,  definition  and  punishment  of 158 

1820,  ch,  107,  §§  3,  4,  G.  Circuit  court,  appelhite  jurisdiction. . . .    180 
ch.  107,  §§  4,  5.  Distress  warrants,  district  court  jurisdic'n  204-6 

"  §  6.  Injunctions 35 

ch.  113,    §2.  Piracy,  what  is,  and  slave  trade...    159,  162,  206 

1821,  ch.    51,  Jurisdiction  circuit  court  over  causes  in  a  dis- 

trict court 163 

1822,  ch.  96,    §  9.  Supreme  court,  appellate  jurisdiction  from  cir- 

cuit court.  District  Columbia 127 

1823,  ch.  24,    §6.  .Turisdict'n  circuit  court,  Dist.  of  Columbia  222,  228 

"  Jurisdiction  justices*  courts  of  Dist.  Columbia  24!. 

ch.  72,  Piracy,  district  courts  may  try 159,  206 

1825,  ch.  25,  Circuit  court,  District  of  Columbia, 219 

1827,  ch.    4,  Depositions  by  commission 53-59 

1828,  ch.  68,  §§  1,  3,  4.  Process,  form  of 78,  79 

1829,  ch.  12,  §§  1,  2.  Supreme  court,  adjournment  of 96 

ch.  162,  §  2.  Jurisdiction  register's  and  orphans'  court.  Dis- 
trict of  Columbia 238 

1830,  ch.  163,  §  1.  Jurisdiction  of  cases  of  obstructing  government 

surveyors 164,  206 

1831,  ch.  28,         Supreme  court,  appellate  jurisdiction  from  dis- 

trict court  of  N.  Alabama 120 

ch.  79,  §  1.  Contempts,  punishment  of 43 

1832,  ch.  06,         Vessels,  sale  of,  &c 83 

1833,  ch.  57,  §  1.  Suits  under  revenue  laws 164 

"         §  3.  Suits  under  revenue  law,  removal  of  from  State 

courts 165-167 

"         §  7.  Habeas  corpus 30 

1834,  ch.  161,  §§  25,  27.  Suits  under  Indian  acts 167,  207,  246 

1836,  ch.  357,  §  17.  Supreme  court,  appellate  jurisdiction,  patent 

cases 118 

ch.  357,  §  17.  Jurisdiction  patent  cases 157 

1837,  ch.  34,  §  1.  Supreme  court,  organization  of 95 

"         §  2.  Supreme  court,  appellate  jurisdiction  from  dis- 
trict court  of  N.  Alabama 120 


INDEX.  355 

Pao«. 

OTATUTKS    CITED    AND    REFERRED   TO    (contillUetl)  : 

1838,  cb.  12,  §  2.  Supreme  court,  appellate  jurisdiction  from  dis- 

trict court  of  N.  Alabama 120 

ch,  118,  §  4.  Supreme  court,  appellate  jurisdiction  from  dis- 
trict court  of  West  Tennessee 120 

ch.  191,  §§11,  12.  Suits  under  acts  relative  to  steamboats.  1G8,  207 
"    192,  §§  1,  2,  4,  G,  7.  Criminal  court  of  District  of  Colum- 
bia, terms  of,  and  jurisdiction  of 235,  237 

"         §5.  Appellate  jurisdiction  of  circuit  court  District  of 

Columbia 227 

1839,  ch.  3,  §  9.  Circuit  courts,  adjournment  of 138 

ch.  31,  §  1,  7.  Criminal  court  of  District  Columbia,  by  whom 

held 235,  236 

"         §  2.  Criminal  court  of  District  Columbia,  writs  of, 

how  tested 236 

"  §§  3,  4,  8.  Criminal  court  of  District  Columbia,  pow- 
ers of  237,  238 

"  §  5.  Appellate  jurisdiction  circuit  court  of  District 

Columbia 227 

ch  3G,  §1.  Jurisdiction  of  the  federal    courts;  defendants 

out  of  district 84 

"         §  2.  Clerks,  appointment  of 92 

"         §  3.  Penalties,  recovery  of 85 

"         §  G.  Reco^izances,  remission  of 85-87 

"         §  8.  Jurisdiction  circuit  court,  when  circuit  judge  is 

interested 169 

ch.  88,  §  11.  Appellate  jurisdiction  district  court  District  of 

Columbia 230-235 

1840,  ch.  43,  §  1.  Circuit  courts,  adjournment  of, 137 

"         §2.  Circuit  courts,  special  sessions  of, 137 

"         §  3.  Supreme  court,   appellate  jurisdiction   in   cases 

brought  from  district  courts 109 

1841,  ch.  11,         Appellate  jurisdiction  of  circuit  court  of  District 

of  Columbia 229 

Jurisdiction  of  justices'  courts 241 

ch.  35,         Costs 2G0,  2G1,  263 

1842,  ch.  29,         Costs 2G0,  2G1,  266 


356  INDEX. 

Page. 

Statutes  cited  and  referred  to  (continued) : 

1842,  ch.  119,       Process,  form  of 79,  80 

ch.  123,       Supreme  court,  appellate  jurisdiction  from  dis- 
trict court  of  N.  Alabama 120 

■ch,  IBS,  §  1.  Commissioners,  powers  of. 155 

"  §  2.  Recognizances  in  criminal  cases 87 

"  §  3.  District  courts,  criminal  jurisdiction 207 

§  7.  Costs 260,  261,  271 

ch,  263,  §  5.  Jurisdiction,  patent  cases 157 

ch.  257,         Habeas  corpus,  McLeod  act 30 

"  Supreme  court,   appellate  jurisdiction;  habeas 

corpus  (McLeod  act) 119 

"  Circuit  court,  appellate  jurisdiction 181 

1843,  ch.  87,  Jurisdiction  circuit  court.  District  of  Columbia  225 

1844,  ch.  31,  Suj)reme  court,  appellate  jurisdiction,  (revenue 

cases) 108 

ch.  96,  §  1.  Supreme  court,  session  of 95 

"■         §  2.  Circuit  courts,  by  whom  held 137 

"  101,  §  3.  Jurisdiction  circuit  court,  District  of  Columbia.   225 

1845,  ch,  20,         Quasi  admiralty  jurisdiction  over  lakes,  &c.  207-210 

ch.  43,  §20.  Suits  under  post  office  acts 170,  210,  226,  246 

ch.  75,  §  3.  Supreme   court,    aj^pellate  jurisdiction    district 

courts  of  Florida 120 

1846,  ch.  1,  §  2.  Supreme    court,    appellate    jurisdiction    district 

court  of  Texas 120 

ch.  8,  Jurisdiction  register's  and  orphans'  court.  District 

of  Columbia 239 

ch.  89,  §  4.  Supreme   court,    appellate  jurisdiction    district 

court  of  Wisconsin 120 

ch,  97,         Jurisdiction  register's  and  orphans'  court,  District 

of  Columbia 239 

ch,  104,       Supreme    court,    appellate    jurisdiction    district 

court  of  M,  Alabama 120 

ch.  105,        Enforcement  of  treaty  stipulations 172,  210 

1847,  ch,  17,  §  4.  Supreme  court,  appellate  jurisdiction  from  Flo- 

rida     128 

ch.  55,         Costs 260,  261,  271 


INDEX.  357 


Pacb. 


Statutes  cited  and  referred  to  (coiilinued)  : 

1847,  ch.  201,  §1,  Supreme    court,    appellate   jurisdiction    district 

courts  of  Florida 120 

1848,  cb.  12,  §  1.  Supreme  court,  appellutejurisdiction  from  Michi- 

gan        129 

"         §  2.  Supreme  court,  appellate  jurisdiction  from  terri- 
tories      129 

cli.  151,§  1.  Appellate  jurisdiction  supreme  court  from  dis- 
trict court  N.  Georgia 120 

ch.  IGG,         Commissioners,  fees  of 59 

ch.  177,  §  9.  Appellate  jurisdiction  supreme  court  from  courts 

of  Oregon 129 

"         §  9.    Jurisdiction  courts  in  Oregon 249,  250 

1849,  ch.  100,        Commissioners,  fees  of 59-60 

"  Clerks'  salaries 270 

ch,  107,        Jurisdiction  circuit  court,  District  of  Columbia  226 
cb.  121,  §  9.  Supreme  court,  appellate  jurisdiction  from  Mi- 

nesota 130 

"  §  9.  Jurisdiction  courts  in  Mincsota 250 

ch.l24,§6.  Supreme    court,   appellate  jurisdiction   district 

court  of  Iowa 120 

1850,  cb.  30,  §§  1,  2,  4.  District  courts 186 

ch.  49,§  10.  Supreme  court,  appellate  jurisdiction  from  New 

Mexico 131 

"        §  10.  Jurisdiction  courts  in  New  Mexico 251 

cb.  51,  §  9.  Supreme  court,  appellate  jurisdiction  from  Utah  130 

"  §  9.  Jurisdiction  courts  in  Utab 252 

cb.  52,  Oaths    41  (n"^ 

cb.  60,  §  2.  Commissioners  in  territories 155,  246 

cb.  86,  §  10.  Supreme    court,    appellate  jurisdiction    district 

court  of  California 120 

1851,cb.  24,  §  3.  Supreme    court,    appellate   jurisdiction    district 

court  of  \V.  Arkansas 120 

cb.  41,  §§  10,  11.  Supreme  court,  appellate  jurisdiction  dis- 
trict court  of  California 120 

"         §§9,  10,  11,  13.  District  court  jurisdiction  California 

laud  claims 210-213 


358  INDEX. 

Paob. 
SUBPCENA  : 

Federal  courts  may  issue 26 

To  witnesses  to  be  examined  on  commission 56 

Subpoena  duces  tecum  : 

To  witnesses  to  be  examined  on  commission 57 

Lies  to  the  President  of  the  United  States    5d 

Testimony: 

Oral,  to  be  llie  same  in  all  the  courts  45-46 

De  bene  esse;  see  title  Depositions. 
By  commission  ;  see  title  Commission. 
See  also  title  Dedimus  potestatem. 

Treason  : 

When  hail  may  he  taken  in  cases  of. 19 

Treaties  : 

Cases  under,  in  what  courts  tried 6 

When  an  action  of  ejectment  is  not  a  case  under 7 

Stipulations  of,  how  enforced 47 

Trial  : 

See  title  Jury  trial. 

Separate,  when  allowed 14 

What  is  a  bar  to  a  second,  and  what  not 17 

United  states  : 

A  party  to  suit,  where  suit  tried 8 

Suit  can  not  he  brought  against 9 

Costs  are  not  recoverable  against 276 

Vessel  : 

Sale  of,  may  be  ordered  in  vacation 83 

See  title  Peuisuadle  pkoperty. 


INDEX.  3/59 

Paob 

Whipping  : 

Punishment  by,  abolished 1^0 

Witness  : 

One  not  to  be  against  himself 1'^ 

Accused,  to  be  confronted  with  those  against  him IB 

"  may  have  compulsory  process  for IB 

Recognizances  of,  in  criminal  cases GG,  87 

Examination  of,  de  bene  esse,  see  title  Depositions  ;  see 
also  title  Commission. 

Words  : 

Meaning  of,  see  title  Piiuases. 

Writs  : 

Federal  courts  may  issue  such  as  are  necessai-y  for  the  ex- 
ercise of  their  jurisdiction 25 

New  ones  may  he  devised 25 

How  tested ^0 

To  be  scaled ^^ 

See  also  titles  Habeas  corpus.  Scire  facias,  Mandamus, 
Execution,  Ne  exeat,  Jurisdiction,  &c. 

Writ  of  error  : 

Proj)cr  method  to  correct  errors  in  cases  of  common  law  111,  174 

Only  lie  from  final  judgmtnts  in  cases  at  common  laic 106 

What  are  final  decrees,  and  lohat  not 107 

May  he  amended  in  the  return  day 106 

Must  he  tested  of  a  previous  term  than  one  to  ichich  it  is  rc- 

turnahlc 106 

Must  be  brought  within  five  years 108 

When  a  supersedeas * 109 

Security  on 108 

Security  on,  when  not  a  supersedeas IIC 

Security  may  he  tahen  after  lapse  of  five  years Ill 


360  INDEX. 

Pagb. 

Writ  of  error  (continued) : 

Will  be  dismissed  wJicn  no  citation  has  been  issued   and 

served 112 

Want  of  monition  for,  cured  by  appearance 112 

Judgment  on  such  as  should  have  been  given  in  the  court 

below 113,  174 

No  reversal  on,  for  error  in  ruling  a  plea  of  abatement, 

except  on  a  plea  to  jurisdiction 108 

Costs  on,  when  judgment  affirmed 110 

From  circuit  to  supreme  court 104 

In  suits  originally  brought  in  circuit  courts 104 

In  suits  brought  by  appeal  from  district  courts 105 

Jn  suits  brought  by  appeal  on  tcrit  of  error  from  district 

courts 109 

Where  amount  in  dispute  exceeds  2,000  dollars 106 

In  revenue  cases,  without  regard  to  amount 108 

Amount  in  dispute  is  learned  from  the  case  as  it  stands  in  the 

supreme  court 104 

What  notice  necessary  to  opposite  party 108 

Carries  up  the  whole  case,  when  verdict  not  large  enough  to 

mahe  it  a  matter  of  right 106 

See  title  Courts,  Supreme  court.  Appellate  jurisdic- 
tion, from  State  courts,  from  Circuit  court  op  Dis- 
trict or  Columbia,  and  from  Territorial  courts  ; 
see  also  titles  Patents,  and  Copy  rights. 

From  district  to  circuit  court,  in  what  cases 174 

Citation  on 174 

What  notice  of  to  be  given 175 

Notice,  how  estimated 174 

Time  of  allowance  only  applies  to  cases  of  writs  of  error  in 

law,  and  not  coram  nobis 174 

Proper  mode  to  correct  errors  in  common  law  cases 174 

See  Writ  of  error,  General  requisites. 


RULES  AND  ORDERS 


SUPREME  COURT  OF  THE  UNITED  STATES, 


ASV  OF  THB 


UNITED  STATES  COURTS, 


EQUITY  PROCEEDINGS, 


AND    IN    CASES    OP 


ADMIRALTY  AND   MARITIME  JURISDICTION, 


NOTES  AND  REFERENCES. 


9 


e 


DECISIONS 

APPLICABLE  TO  ALL  THE  FOLLOWING  RULES. 


It  is  not  necessary  that  any  court,  in  establishing  and 
changing  its  practice,  should  do  so  by  writttm  rules.  A 
practice  may  be  established  by  an  miiform  mode  of  pro- 
ceeding for  a  number  of  years,  and  this  forms  the  law  of 
the  court.  Duncan's  Heirs  vs.  Ufiitcd  States,  7  Peters,  435. 
FuUcrton  vs.  BanJc  United  States,  1  Pet.  604. 

Tlie  general  orders  of  a  court  are  to  be  considered  as 
laying  down  genei-ul  rules,  but  not  as  being  so  imperative 
that  they  can,  under  no  circumstances,  be  departed  from. 
Burrell  vs.  Nicholson,  6  Simons,  212.  Attorney  General 
vs.  Mayor,  SfT.,  of  Carlisle,  2  Simons,  421.  Baring  vs. 
Prinsepp,  1  Modd.,  52G. 

Motions,  of  course,  cannot  be  opposed,  though  the 
party  moving  had  unnecessarily  given  notice  thereof. 
Eylcs\&.  Ward,  Uosely,  255.  1  AW.  Chan.  Prac,  199. 
1  Barb.  Chan.  Prac,  5G6. 

It  is  the  duty  of  a  party,  on  whose  aiyplication  an  ord^r  is 
made,  to  draw  it  up  correctly.  Landers  vs.  Allai.  0  Si- 
mons, G20. 

A  court  may  at  any  time  reverse  an  intcrlocutoi-y  decree. 
Osle  vs.  Lee,  2  Cra.,  33. 


RULES 


SUPREME  COURT  OF  THE  UNITED  STATES. 


FROM     THE 


YEAR   1790    TO    1852. 


RULES 


SUPREME    COURT. 


Rule  I. 

(  February  3.  1790.  ) 

Ordered,  That  John  Tucker,  Esq.,  of  Boston,  be 


RULE  1. 


the  clerk  of  this  court.  t-^ifk's 

(irnce  to  be 

That  he  reside  and  keep  his  office  at  the  seat  at  "pat  of 

govenim't. 

of  the  national  government,  and  that  he  do  not  (^i^j-u  ,,,,1 
practice  either  as  an  attorney  or  counsellor  in  this  |^"J^'',  ^^'.'^^ 
court  while  he  shall  continue  to  b.  clerk  of  the  J'^Si^'r 
same. 

The  clerk  of  the  supreme  court  is  appointed  by  the  court, 
and  may  be  removed  by  the  same  body  {Ex  parte  Hennen,  13 
Pet.  225).  Before  entering  upon  the  duties  of  his  office,  he 
takes  an  oath  or  affirmation  to  truly  and  faithfully  enter  and 
record  all  the  orders,  decrees,  judgments,  and  proceedings  of 
the  court,  and  that  he  will  faithfully  and  impartially  discharge 
the  duties  of  his  office.  He  also  gives  bond  with  sufficient 
sureties  (to  be  approved  by  the  court),  to  the  United  States,  in 
the  sum  of  two  thousand  dollars,  for  the  performance  of  his 
duties.  Act  I'SO,  ch.  20,  §  7.     His  fees  are  ten  dollars  a  day, 


J68  RULES  OF  THE  FEDERAL  COURTS. 

RULE  I.  for  his  attendance  in  court ;  and  for  his  other  services  in  dis- 
charging the  duties  of  his  office,  double  the  fees  of  the  clerk  of 
the  supreme  court  of  that  state  in  which  the  supreme  court  of 
the  United  States  shall  be  holden  (i.  e.  Maryland).  Act  1792, 
ch.  36,  §  3  ;  and  1799,  ch.  19,  §  3  (1  Stat,  at  Large,  277,  625). 
For  list  of  clerks,  see  Appendix. 


Rule  IL 

(  February  5,  1790    ) 

It  shall  be  requisite  (until  further  ordered)  to  the 

Qualifica- 


RnLE2. 


sellors. 


tions  oT  admission  of  attorneys  or  counsellors  to  practice 
a?d"ioim.  ill  tlj^is  court,  that  they  shall  have  been  such  for 
three  years  past  in  the  supreme  courts  of  the  state 
to  which  they  respectively  belong,  and  that  their 
private  and  professional  character  shall  appear  to 
be  fair. 

That  a  counsellor,  practicing  in  the  highest  courts  of  one 
of  the  states  in  which  he  resides,  had  been  struck  off  the  roll 
of  counsellors  of  the  district  court  of  the  United  States  in  that 
state,  by  the  order  of  the  judge  of  that  court,  for  a  contempt, 
does  not  authorise  the  supreme  court  to  refuse  his  admission 
as  a  counsellor  of  the  supreme  court.  Ex  parte  Tillinghast,  4 
Pet.  108. 


Rule  III. 

(  February  5,  1790.  ) 

RULES.        Counsellors  shall  not  practice  as  attorneys,  nor 
Counsel-    attomcys  as  counsellors,  in  this  court. 

lors  not  to 

act  as  ;it- 

tornoys:  By   Rule   14,    counsellors  *can    be   admitted    as   attorneys, 

and  vice 

versa.  upon  taking  the  usual  oath. 


SUPREME  COURT.  369 


Rule  IV. 

(  Felrvary  .0,  1790.  ) 

[ReschiJed.']     Counsellors  and  attorneys  shall     rule  4 
respectively  take  the  following  oath,  viz :  *'  I,  oaih  of  at- 


torueys 
and  cou 
sellors. 


solemnly  swear  that  I  will  demean  myself  (as  an  and  coua- 
attorney  or  counsellor  of  the  court)  uprightly,  and 
according  to  law;  and  that  I  will  support  the 
Constitution  of  the  United  States." 

See  Rule  6,  by  which  a  new  oath  is  substituted. 


Rule  V. 

(  February  5,  1790.  ) 

All  process  of  this  court  shall  be  in  the  name     roles. 
of  the  President  of  the  United  States,  (unless  and  Process  to 
until  it  shall  otherwise  be  provided  by  law.)  JiameU  ^ 

the   Presi- 
deut. 

Rule  VI. 

(  February!,  1791.  ) 

Counsellors  and  attorneys  admitted  to  practice     rules. 
in  this  court,  shall  take  either  an  oath,  or  in  pro-  oathTfat- 
per  cases,  an  affirmation,  of  the  tenor  prescribed  auT^coan. 
by  the  rule  of  this  court  on  that  subject,  made  suil"",ut'd 
Fcbruarv  term,  1790,  viz.:  "I,  do  "'pii'^eof 

'  '  '  oath  pre- 

solemnly  swear,  (or  affirm,  as  the  case  may  be,)  g^jg''/ ^^ 
that  I   will   demean  myself  as  an   attorney  or 
counsellor  of  this  court,  uprightly,  and  according 
to  law ;  and  that  I  will  support  the  constitution 
of  the  United  States." 

24 


ill  EnglaVl 
to  furnish 
outlines  of 
practice. 


370  RULES  OF  THE  FEDERAL  COURTS. 

Rule  VIL 

(  August  8,  1791.  ) 

RULE  7.  The  chief  justice,  in  answer  to  the  motion  of 
PraJtiLeof  ^hc  attomey-gcneral,  made  yesterday,  informs 
of  ki<r'  hii^  find  the  bar,  that  this  court  consider  the 
chancery^  practicc  of  the  courts  of  king's  bench,  and  of 
chancery,  in  England,  as  affording  outlines  for 
the  practice  of  this  court ;  and  that  they  will, 
from  time  to  time,  make  such  alterations  therein 
as  circumstances  may  render  necessary. 

The  practice  of  the  English  court  of  chancery,  and  not 
that  of  the  court  of  exchequer,  forms  the  basis  of  the  equity 
practice  of  the  courts  of  the  United  States.  Smith  vs.  Burnham, 
2  Sumner  612. 

See,  also,  as  directly  sustaining  the  rule,  Anon,  2  Dal.  411. 


Rule  VIIL 

(  February  4,  1795.  ) 

RULES.        The  court  gave  notice  to  the  gentlemen  of  the 
oou^ei  to  ^^^'  ^^^^  hereafter  they  will  expect  to  be  furnished 
with  a  statement  of  the  material  points  of  the 


furnish 
gtatement 

of  points.    (>ggg  from  the  counsel  on  each  side  of  a  cause. 

Such  statement  must  be  a  printed  brief  or  abstract  of  the 
cause,  containing  the  substance  of  all  the  material  pleadings, 
facts,  and  documents  on  which  the  parties  rely,  and  the  points 
of  law  and  facts  intended  to  be  presented  at  the  argument  (Rule 
29) ;  together  with  the  points  intended  to  be  made,  and  the 
authorities  intended  to  be  cited  in  support  of  them,  arranged 
under  the  respective  points ;  and  no  other  book  or  case  can  be 
referred  to  in  the  argument  (Rule  53). 


SUPREME  COURT.  371 


Twelve  copies  of  the  same  must  be  filed  with  the  clerk,  three  niir.E  a, 
days  before  the  case  is  called  for  argument  (Rule  57)  ;  and  if 
one  of  the  parties  omit  to  file  such  statement,  he  can  not  be 
heard;  and  the  case  will  be  heard  ex 'parte,  upon  the  argument 
of  the  party  by  wliom  such  a  statement  has  been  filed  (Rule 
53). 

Unless  these  statements  are  furnished,  the  cause  \\\\\  be  dis- 
missed. Peyton  vs.  Brooke,  3  Cra.  92;  1  Cond.  4G4.  The  Ca- 
tharine vs.  United  States,  7  Cra.  99  ;  2  Cond.  431. 


Rule  IX. 

(  February  17,   1735.  ) 

All  evidence  on  motion  for  a  discharge  upon     rule 9. 
bail  nuibt  be  Avay  of  dq)06ition^  and  not  viva  voce.  Evitu^ce 

for  dis- 
The    supreme    court   has  jurisdiction,    under  the    constitu-    jj^-j  \^  ^g 
tion  and  laws  of  the  United  States,  to  bail  a  person  committed    ^y  deposi- 

.  tlOIl. 

for  trial  on  a  criminal  charge  by  a  district  judge.  United  States 
vs.  Hamilton,  3  Dal.  17. 

The  circumstances  of  the  case  must  be  very  strong,  which 
will,  at  any  time,  induce  a  court  to  admit  a  person  to  bail,  who 
stands  charged  with  high  treason.  United  States  vs.  Stewart,  2 
Dal.  343. 

Upon  a  question  incidental  to  and  closely  connected  with  the 
subject  of  bail,  what  would  be  tlic  proper  process  to  bring  an 
accused  person  into  court  to  answer  an  indictment,  the  chief 
justice  held  that  a  cajnas  was  the  more  pioper  process,  and 
more  in  conflirmity  with  the  spirit  of  the  o3d  section  of  the 
judiciary  act  of  1789  ;  and  even  though  the  laws  of  a  state 
might  declare  a  summons  proper,  in  like  cases  :  for  the  laws  of 
the  stales  had  not  been  adopted  as  rules  of  practice  in  criminal 
cases.  U.  S.  vs.  Burr,  2  Robertson's  Report  of  that  trial,  481. 
Dupon.  on  Juris,  app.  227.  This  doctrine  combatted  by  Du- 
ponceau,  Dujw/i.  on  Juris.  37. 


372  RULES  OF  THE  FEDERAL  COURTS. 


Rule  X. 

(  August  12,  179G.  ) 

RULE  10.        When  process  at  eommon  law,  or  in  equity, 

Process  shall  issue  against  a  state,  the  same  shall  be  served 

sfatlToii^  on  the  governor,  or  chief  executive  magistrate, 

be  served,  aud  attomcy  general  of  such  state. 
Subpoena        Proccss  of  subpoeua,  issuing  out  of  this  court, 

ed  CO  Jays  iu  auy  sult  in  equity,  shall  be  served  on  the  de- 

returuday  fcudaut  sixty  days  before  the  return  day  of  the 

Defendant  Said  proccss ;  and  further,  that  if  the  defendant, 

pearlng,  ou  sucli  scrvicc  of  the  subpoena,  shall  not  appear 

an?may"  at  tlic  retum  day  contained  therein,  the  complain- 

^"parte.  aut  sliall  be  at  liberty  to  proceed  ex ixirte. 

Service  on  one  of  these  officers  ( chief  magistrate  and 
attorney  general)  not  sufficient  to  entitle  the  court  to  proceed. 
State  of  Neic-Jerscy  vs.  State  of  New-York,  3  Pet,  461. 

But  where  the  attorney  general  of  the  state  of  New- York, 
who  was  also  a  regular  practitioner  in  this  court,  filed  a  de- 
murrer in  behalf  of  the  state  of  New- York  to  a  bill  filed  by  the 
state  of  New-Jersey,  it  was  regarded  an  appearance.  New- 
Jersey  vs.  Ncio-  York,  G  Pet.  323. 

Service  of  subpoena,  in  a  suit  of  one  state  against  another, 
sixty  days  before  return  day  is  sufficient.  New-Jersey  vs.  New- 
York,  5  Pet.  283,  citing  Grayson  vs.  State  of  Virginia,  3  Dal. 
320  ;   1  Cond.  141. 

But  the  practice  seems  to  be  well  settled,  that  in  suits  against 
a  state,  if  the  state  shall  refuse  or  neglect  to  appear,  upon  due 
service  of  a  process,  no  coercive  measures  will  be  taken  to 
compel  appearance  ;  but  the  complainant  or  plaintiff  will  be 
allowed  to  proceed  ex  parte.  Rhode-Island  vs.  Massachusetts, 
12  Pet.  755,  761. 


SUrREME  COURT.*  373 


Rule  XI. 

(  Ftlniary  13,  17.07.  ) 

The  clerk  of  the  court  to  which  any  writ  of    uuleh. 
error  shall  be  directed,  may  make  return  of  the  Ret,^to 
same,  by  transmitting  a  true  copy  of  the  record,  Jrm'r'Vow 
and  of  all  proceedings  in  the  cause,  under  his  '"'''^'^' 
hand  and  the  seal  of  the  court. 

By  Rule  31,  no  cause  can  be  heard  until  a  complete  record, 
containing  in  itself,  without  references  aliunde,  all  the  papers, 
exhibits,  depositions,  and  other  proceedings  which  are  necessary 
to  the  hearing  in  this  court,  shall  be  filed. 

Citation  is  not  necessarily  a  part  of  the  record,  Innerarrity 
vs.  Byrne,  5  How.  295  ;  but  should  accompany  it  Lloyd  vs. 
Alexander,  1  Cra.  365  ;   1  Cond.  334. 

Rule  XII. 

(  Avgvst  7.  1797.  ) 

No  record  of  the  court  shall  be  suffered  by  the  rule  12. 

clerk  to  be  taken  out  of  his  office,  but  by  the  Rec^sof 

consent  of  the  court ;  otherwise  to  be  responsible  to  be  taK 

for  it.  f';""! ,    , 

clerk  s  of- 
fice exc'pt 
By  Rule  35,  no  original  record  can  be  taken  from  the  su-   ^^o^^- 

preme  court  room,  or  from  the  office  of  the  clerk  of  the  court, 

under  any  circumstances. 

Rule  XIII. 

(  Augvst  15,  1800.  ) 

IN  THE  CASE  OF  COURSE  VS.  STEAD's  EXECUTORS. 
4  Cm.  403,  2  Coiul.  151. 

The  plaintiff  in  error  shall  be  at  liberty  to  show    RI'le  13. 
to  the  satisfaction  of  this  court,  that  the  matter  Sum  or 


374 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  13. 

value  iu 
dispute 
how  may 
be  shown. 


RULE  14. 

Couiisel- 
Inrs  may- 
be attor- 
neys. 


RULE  lo. 

Defendant 
not  ap- 
pearing, 
plaintiii' 
may  pro- 
ceed ex 
parte. 


ill  dispute  exceeds  the  sum  or  value  of  two  thou- 
sand dollars,  exclusive  of  costs ;  this  to  be  made 
appear  by  affidavit,  on  days'   notice  to 

the  opposite  party,  or  their  counsel  in  Georgia. 
Rule  as  to  affidavits  to  be  mutual. 

In  an  action  for  dower,  and  in  equity,  the  value  of  the  matter 
in  controversy  does  not  appear  :  its  real  value  may  be  shown 
by  affidavits  Williamson  vs.  Kincaid,  4  Dal.  20  ;  1  Cond.  215. 
Course  vs.  Stead,  4  Dal.  22  ;  1  Cond.  217.  And  time  will  be 
given  to  procure  such  affidavits.  Rush  vs.  Parker,  5  Cra.  287  ; 
2  Cond.  259.  See  also  to  the  same  effect.  United  States  vs. 
Brig  Union,  4  Cra.  216  ;  2  Cond.  91.  Ex  parte  Bradstreet,  7 
Peters  634. 

Viva  voce  evidence  will  be  permitted,  to  show  the  value  of 
the  amount  in  dispute.  United  States  vs.  Brig  Union,  4  Cra. 
216;  2  Cond.  91. 

Rule  XIV. 

(  Augvst  12,  1801.  ) 

Counsellors  may  be  admitted  as  attorneys  in 
this  court,  on  taking  the  usual  oath. 

See  Rule  3. 

Rule  XV. 

(  December  9,  1801.  ) 

In  every  case  where  the  defendant  in  error 
fails  to  appear,  the  plaintiff  may  proceed  ex  'parte. 

By  Rule  19,  it  is  ordered  that  if  the  defendant  refuse  to  plead 
to  issue,  and  the  cause  be  called  for  trial,  the  court  may  proceed 
to  hear  an  argument  on  the  part  of  the  plaintiff,  and  may  give 
a  judgment  according  to  the  right  of  the  cause. 

It  is  in  general  of  no  importance  to  the  appellant,  whether 
an  appearance  of  the  appellee  is  or  is  not  entered  on  the  record. 


SUPREME  COURT.  375 


16 


If  the  apiJOJil  has  been  regularly  prosecuted,  he  is  as  much 
entitled  to  judgment  in  the  one  case  as  in  the  other.  United 
States  vs.  Yates  et  al.,  6  How.  605. 

Rule  XVI. 

(  Fdniary  Term,  1803.  ) 

Where  the  writ  of  error  issues  within  thirty    rii-e 
days  before  the  meeting  of  the  court,  the  dcfen-  ^v^u.u  d..- 

.         1    .  feliilaiit 

dant  in  error  is  at  liberty  to  enter  his  appearance,  ,„aygo  to 
and  proceed  to  trial ;  otherwise,  the  cause  must  havJcalse 

,  coutinued 

be  continued.  on  writ  of 

error. 
See  Rules  19  and  43. 

Rule  XVII. 

(  Fcbntary  Term,  1803.  ) 

In  all  cases  where  a  writ  of  error  shall  delay  rile  17. 
the  proceedings  on  the  judgment  of  the  circuit  Damages 
court,  and  shall  appear  to  have  been  sued  out  nfe^rroT" 
merely  for  delay,  damages  shall  be  awarded,  at  for  dcky. 
the  rate  oUenper  centum 'per  annum  on  the  amount 
of  the  judgment. 

By  Rule  20,  such  damages  are  to  be  calculated  to  the  day  of 
the  affirmance  of  the  judgment  in  this  court. 

Interest  may  be  allowed  on  the  amount  of  the  debt,  as  as- 
certained by  the  decree  of  the  court  below,  but  not  upon  the  da- 
mages. Jennings  vs.  Brig  Perseverance,  3  Dal.  336  ;  1  Cond.  154, 

Where  a  judgment  or  decree  in  an  admiralty  suit  is  affirmed 
on  writ  of  error,  there  can  be  no  allowance  of  damages  but  for 
delay.     Cotton  vs.  WaUacc,  3  Dall.  302  ;  1  Cond.  134. 

The  supreme  court  is  authorised  by  the  act  of  1789,  ch.  20, 
§  23,  to  award  to  the  respondent  just  damages  for  his  delay ; 
but  "it  is  solely  for  the  decision  of  the  supreme  court,  whether 


376 


RULES  OF  THE  FEDERAL  COURTS. 


any  damages  or  interest  (as  a  part  thereof)  are  to  be  allowed. 
The  circuit  court,  in  carrying  into  effect  the  decree  of  affirmance, 
can  not  enlarge  the  amount  decreed.  Boyce  Ex'rs  vs.  Grundy, 
9  Pet.  274. 


RULE  IS. 

Damages 
where 
there  is  a 
real  con- 
troversy. 


Rule  XVIIL 

(  February  Term,  1803.  ) 

In  such  cases,  where  there  exists  a  real  contro- 
versy, the  damages  shall  be  only  at  the  rate  of 
six  per  centum  per  annum.  In  both  cases  the  in- 
terest is  to  be  computed  as  part  of  the  damages. 

See  previous  rule,  and  cases  cited. 


RULE  19. 

When  cau- 
ses at  trial 
for  the 
term. 

When  not. 


Where 
writ  of  er- 
ror is  a 
superse- 
deas,when 
plaintiff  to 
file  copy  of 
the  record. 


Rule  XIX. 

(  February  Term,  1806.  ) 

All  causes,  the  records  in  which  shall  be  deli- 
vered to  the  clerk  on  or  before  the  sixth  day  of  a 
term,  shall  be  considered  as  for  trial  in  the  course 
of  that  term(«).  Where  the  record  shall  be  de- 
livered after  the  sixth  day  of  the  term,  either 
party  will  be  entitled  to  a  continuance (/>).  [In 
all  cases  where  a  writ  of  error  shall  be  a  super- 
sedeas to  a  judgment  rendered  in  any  circuit 
court  of  the  United  States,  except  that  for  the 
District  of  Columbia,  at  least  thirty  days  previous 
to  the  commencement  of  any  term  of  this  court, 
it  shall  be  the  duty  of  the  plaintiff  in  error  to 
lodge  a  copy  of  the  record  with  the  clerk  of  this 
court  within  the  first  six  days  of  the  term ;  and  if 


SUPREME  COURT.  377 


he  shall  fail  so  to  do,  the  defendant  in  error  shall    rule  lo. 
he  permitted  afterwards  to  lodge  a  copy  of  the  ^vh~th« 
record  with  the  clerk,  and  the  cause  shall  stand  lll'ly  ^£"1 
for  trial  in  like  manner  as  if  the  record  had  come  JS'/^'" 
up  within  the  first  six  days;  or  he  may,  on  pro- 
ducing a  certificate  from  the  clerk,  stating  the  the  wnt 
cause,  and  that  a  writ  of  error  has  been  sued  out,  docketed 
which  operates  as  a  supersedeas  to  the  judgment,  ll'.bsLd. 
have  the  said  writ  of  error  docketed  and  dismis-  j,„ij,,„.,„3 
sed(c).]     This  rule  shall  apply  to  all  judgments  ;;;  S;'„V- 
rendered  by  the  court  for  the  District  of  Colum- 
bia at  any  time  prior  to  a  session  of  this  court. 


ti-d. 


\Ml.Ml 


In  cases  not  put  to  issue  at  the  August  term,  it  "^[^^^'l"' 
shall  be  the  duty  of  the  plaintifi'in  error,  if  errors  ^^/^J^'^f^^i*. 
shall  not  have  been  assigned  in  the  court  below,  'g"^/^.^*/" 
to  assign  them  in  this  court  at  the  commence-  •""". 
ment  of  the  term,  or  so  soon  thereafter  as  the  re- 
cord shall  be  filed  with  the  clerk,  and  the  cause 
placed  on  the  docket;  and  if  he  shall  fail  so  to 
do,  and  shall  also  fail  to  assign  them  when  the 

cause  shall  be  called  for  trial,  ihe  writ  of  error  neft.  refu- 
sing to 

may  be  dismissed  at  his  costs;  and  if  the  defen-  i-i'^^^Jpiff- 

J  may  l)e 

dant  shall  refuse  to  plead  to  issue,  and  the  cause  i"'a"i« 
shall  be  called  for  trial,  the  court  may  proceed  to 
hear  an  argument  on  tlie  part  of  the  plaintiff,  and  rm:  not 
to  give  judgment  according  to  the  right  of  the  delSuut' 
cause((/) ;  and  that  where  there  is  no  appearance  n',r,'s  the 
for  the  plaintift^in  error,  the  defendant  may  have  Zn^or^^ 
the  plaintift'  called,  and  dismiss  the  writ  of  error ;  nreVit"'affi?- 
or  may  open  the  record,  and  pray  for  an  affirm- 


Uieil. 


378 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  19.    ance.     In  such  a  case  eos/-9  go  of  course.     Monta- 
Costs  of     let  vs.  Murray,  3  Cranch  249,  1  Cond.  516. 

course. 

{a)  By  Rule  16,  when  the  writ  of  error  issues  within  thirty 
days  before  the  meeting  of  the  court,  the  defendant,  at  his 
option,  may  appear  and  proceed  to  trial,  or  the  cause  must  be 
continued. 

{!>)  By  Rule  43,  when  the  writ  of  error  or  appeal  is  docketed 
and  the  record  filed,  after  the  first  six  days  of  the  term,  the 
cause  stands  for  argument  at  the  term,  or  maybe  continued,  at 
the  option  of  the  defendant. 

(c)  That  portion  of  the  rule  included  in  brackets  has  been 
rendered  more  broad  and  comprehensive  by  Rules  30  and  43, 
and  is  made  to  extend  to  appeals  as  well  as  to  writs  of  error ; 
and  whether  such  writs  of  error  act  as  a  supersedeas,  or  not  ; 
and  whether  such  writs  of  error  and  appeals  are  from  a  judg- 
ment, or  decree  of  a  circuit  court,  or  of  any  other  court. 

{d)  See  Rule  15,  and  decision  there  cited,  as  to  the  right  of 
the  plaintiff  to  proceed  ex  parte. 

See  Rules  30  and  43, 


Rule  XX. 

(  Fdrnary   Term,  1808.  ) 

Where  damages  are  given  by  the  rule  passed 
in  Febrnaiy  term,  18i)3(fl),  the  said  damages  shall 
be  calculated  to  the  day  of  the  affirmance  of  the 
judgment  in  this  court. 


RULE  20. 

Damages 
to  what 
titnti  cal 
culated. 


(«)  Rules  17  and  18,  and  cases  there  cited. 


RULE  21. 


Non-resi- 
deuts  to 


Rule  XXL 

(  February   Term,  1807.  ) 

All  parties  of  this  court,  not  being  residents  of 
the  United  States,  shall  give  security  for  the  costs 


SUPREME  COURT.  379 


rive  Hecii- 


Cl.-rk 
riirt    have 
attachir'at 
to  collf  ct 


accruing  in  this  court,  to  be  entered  on  the  re-    rule  21. 
cord. 

Upon  the  clerk  of  this  court  producing  satis-  "'f,/'"' 
factory  evidence,  by  affidavit,  or  the  acknowledg- 
ment of  the  parties  or  their  sureties,  of  having 
served  a  copy  of  the  bill  of  costs  due  by  them  '''^'^"sts 
respectively,  in  this  court,  on  such  parties  or  their 
sureties,  an  attachment  shall  issue  against  such 
parties  or  sureties  respectively,  to  compel  payment 
of  the  said  costs 

By  Rule  37,  tlic  clerk  is  requireJ,  in  all  cases,  to  take  from 
the  plaintiff  a  bond  with  competent  security,  to  respond  to  costs, 
in  the  sum  of  two  hundred  dollars;  or  a  deposit  of  that  amount 
must  be  placed  in  bank,  subject  to  his  draft. 

See  Rule  37,  and  cases  there  cited 


Rule  XXII. 

(  February  Term,  ISIO.  ) 

Upon  the  reversal  of  a  judgment  or  decree  of  rjule  22. 

the  circuit  court,  the  party  in  whose  favor  the  q„  ~,.r. 

reversal  is  shall  recover  his  costs  in  the  circuit  ^^'«^"'*'' 

'•'^  go  to  party- 
court.  >uccLO(l- 


In  all  cases  of  reversal,  if  this  court  direct  the  court  below 
to  enter  judgment  for  the  plaintiff  in  error,  the  court  below 
will,  of  course,  enter  the  judgment  with  the  costs  of  that  court. 
McKnight  vs.  Craig' s  Adminisfraiors,  6  Cranch  1S3 ;  2  Cond.  345. 

This  rule  is  supposed  by  Judge  Coxkling  to  be  hosed  upon 
the  dictum  of  the  chief  justice,  in  the  case  above  quoted;  and 
that  the  general  language  of  the  nde  is  not  ^warranted  by  that 
case.     Coyik.  Trca.,  Ed.  1842,  p.  462. 

See  also  third  clause  Rule  45. 


380  RULES  OF  THE  FEDERAL  (50URTS. 


Rule  XXIII. 

(  February  Term,  1812.  ) 

RULE  23.        Only  two  counsel  will  be  permitted  to  argue 
Only  two    for  eacli  party,  plaintiff  and  defendant  in  a  cause. 

counsel  lo 
be  heard 

iu  a  cause.  Only  two  counsel  will  be  heard  on  eacli  side,  whatever  may 
be  the  number  of  points.     Anon,  7  Cra.  1. 

This  rule  has  been  dispensed  with  in  a  cause  of  great  public 
importance,  where  the  sovereign  rights  of  the  United  States 
and  a  state  were  involved,  and  the  Government  of  the  United 
States  had  directed  the  attorney  general  to  appear  for  one  of 
the  parties.  McCulloclivs.  State  of  Maryland,  4  Whea.  316  ; 
4  Cond.  470  (»). 

The  court  will,  in  its  discretion,  continue  a  cause  on  account 
of  the  death  of  counsel.  Hunter  vs.  Fairfax's  Devisee,  3  Dall. 
306.. 

Counsel  can  not  be  heard,  who  represent  parties  not  on  the 
record,  although  they  may  think  themselves  interested  ;  as  the 
only  parties  the  court  can  know  are  those  in  the  record,  Har- 
rison vs.  Nixon,  9  Pet.  483,  538. 


Rule  XXIV. 

(  February  Term,  1812.  ) 

RULE  24.  There  having  been  two  associate  justices  of  the 
Aiiotoent  court  appointed  since  its  last  session,  It  is  ordered, 
ofjustices,  rpj^^^  ^j^^  followlug  allotment  be  made  of  the 
chief  justice  and  the  associate  justices  of  the  said 
supreme  court,  among  the  circuits,  agreeably  to 
the  act  of  congress  in  such  case  made  and  pro- 
vided; and  that  such  allotment  be  entered  on 
record,  viz: 

For  the  first  circuit — the  Hon.  Joseph  Story. 


SUPREME  COURT.  381 


For  the  second  circuit* — the  Hon.  Brockholst    rule  24. 
Livingston. 

For  the  third  circuit — the  Hon.  Bushrod  Wash- 
ington. 

For  the  fourth  circuit — the  Hon.  Gabriel  Duval. 

For  the  fifth  circuit — the  Hon.  John  Marshall, 
C.J. 

For  tlie  sixth  circuit — the  Hon.  William  John- 
son. 

For  the  seventh  circuit — the  Hon.  Thomas  Todd. 

The  last  allotment  of  the  chief  justice  and  the  associate  jus- 
tices of  the  supreme  court  was  made  at  the  December  term  of 
the  court  for  1S17,  and  was  as  follows  : 

For  the  first  circuit,  The  Hon.  Levi  Woodbury. 

For  the  second  circuit,      The  Hon.  Samuel  Nelson. 

For  the  third  circuit.  The  Hon.  Robert  C.  Grier. 

For  the  fourth  circuit,        The  Hon.  Roger  B.  Taney,  C.  J. 

For  the  fifth  circuit,  The  Hon.  John  McKinley. 

For  the  sixth  circuit,  The  Hon.  James  M.  Wayne. 

For  the  seventh  circuit,      The  Hon.  John  INIcLean. 

For  the  eighth  circuit,       The  Hon,  John  Catron. 

For  the  ninth  circuit.  The  Hon.  Peter  V.  Daniel. 

On  every  appointment  of  a  chief  justice  or  associate  justice, 
an  allotment  is  made  of  the  circuits  among  the  justices,  and  is 
entered  of  record.  If  no  such  allotment  be  made  by  the  jus- 
tices at  the  session  next  succeeding  such  appointment,  and  also 
after  the  appointment  of  any  judge,  and  before  any  other  allot- 
ment shall  have  been  made,  the  President  may  make  such  al- 
lotment as  he  shall  deem  proper,  which  shall  be  binding  until 
another  allotment  shall  be  made.     Act  1802,  ch.  31,  §  5. 

The  death  of  one  of  the  justices,  the  Hon.  Levi  Woodbury, 
having  occurred  since  the  above  allotment,  and  a  new  justice 
having  been  appointed,  there  will  probably  be  made  another 


382 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  24.     allotment  at  the  terra  of  the  supreme  court  for  the  winter  of 
~         1851  -  52. 

For  a  list  of  the  chief  justices  and  of  the  associate  justices  of 
the  supreme  court,  since  its  organization,  see  Appendix. 

*  The  Hon.  Smith  Thompson  having  been  appointed  associate 
justice  of  the  supreme  court,  in  the  place  of  the  Hon.  Brock- 
HOLST  Livingston,  deceased,  the  President  of  the  United  States 
assigned  to  him  the  second  circuit,  by  an  instrument  dated  the 
day  of  A.  D.  one  thousand  eight  hun- 

dred and  twenty-three. 


Rule  XXV. 

(  February   Term,  1816.  ) 

RULE  20.        In  all  cases  where  further  proof  is  ordered  by 
luc^soi  the  court,  the  depositions  which  shall  be  taken 
shall  be  by  a  commission  to  be  issued  from  this 
court,  or  from  any  circuit  court  of  the  United 

States. 


further 
proof,    c]( 
positions 
to  be  by 
commis- 

8i<iU. 


For  terms  upon  which  such  a  commission  may  issue  in  cases 
of  admiralty  and  maritime  jurisdiction,  see  Rule  27. 

The  provisions  of  the  30th  section  of  the  judiciary  act  of 
1789,  as  to  taking  depositions  dc  hene  esse,  do  not  apply  to  cases 
pending  in  the  supreme  court,  but  only  to  cases  in  the  circuit 
and  district  courts.  The  Argo,  2  Whea.  287  ;  4  Cond.  535. 
Testimony  by  depositions  for  the  suj^reme  court,  can  be  taken 
only  under  a  commission  issued  according  to  its  rules.  Ibid. 

It  is  not  a  matter  of  course  to  make  an  order  for  further  proof. 
Where  the  parties  are  apprised  of  the  nature  of  the  proof  re- 
quired, and  have  it  in  their  power  to  produce  it,  the  court  will 
not  readily  listen  to  such  an  application.  The  Si.  Lawrence, 
8  Cra.  434  ;  3  Cond.  202.  The  Dos  Ilermanos,  2  Whea.  76  ; 
4  Cond.  39. 

It  is  the  practice  of  the  supreme  court,  in  prize  cases,  to  hear 
the  cause  in  the  first  instance  upon  the  evidence,  transmitted 


SUPREME  COURT.  383 


from  the  circuit  court,  aiul  to  decide  upon  that  evidence  whether     ri'i.e  •&. 
it  is  proper  to  allow  further  proof.      The  London  Packet,    2 
Whea.  371  ;  4  Cond.  162. 

As  to  when  order  for  further  proof  will  be  made,  see  also 
I'he  Samuel,  1  Whea.  9 ;  3  Coud.  466.  The  Venus,  1  Whea. 
112  ;  3  Cond.  496.  The  Pizarro,  2  Whea.  227  ;  4  Cond.  103. 
And  as  to  when  such  order  will  not  be  made,  see  case  last  cited  ; 
and  also  The  St.  Lawrence,  8  Cra.  434  ;  3  Cond.  202. 

In  appeals  to  this  court  from  the  circuit  courts  in  chancery 
cases,  the  parol  testimony  which  is  heard  in  the  court  below 
ought  to  appear  on  the  record.  Conn.  vs.  Penn.,  5  Whea.  424  ; 
4  Cond.  716. 

See  also  Rule  27,  and  references  to  the  same. 

Rule  XXVI. 

(  February  Tt-rm,  1817.  ) 

Whenever  it  shall  be  necessary  or  proper,  in    rule  26. 
the  opinion  of  the  presiding  judge  in  any  circuit  orifjinai 
court,   or  district  court  exercising  circuit  court  Clv"uy 
jurisdiction,    that   original   papers  of   any   kind  frozirtL 
should  be  inspected  in  the  supreme  court,  upon  i^'^^ 
appeal,  such  presiding  judge  may  make  such  rule 
or  order  for  the  safe  keeping,  transporting,  and 
return  of  such  original  papers,  as  to  him  may 
seem   proper;    and  this  court  will  receive  and 
consider  such  original  papers,  in  connexion  with 
the  transcript  of  the  proceedings. 

When  an  inspection  and  comparison  of  original  documents 
is  material  to  the  decision  of  a  prize  cause,  this  court  will  order 
the  original  papers  to  be  sent  up  from  the  court  below.  The 
Elsineiir,  1  Whea.  439  ;   3  Cond.  615. 


384  RULES  OF  THE  FEDERAL  COURTS. 

Rule  XXVII. 

C  February  Term,  1817.  ^ 

RULE  27.  In  all  cases  of  admiralty  and  maritime  jurisdic- 
Evidences  tlon,  whcrB  ncw  evidence  shall  be  admissible  in 
raUyc"ses  tliis  court,  the  cvidcnce  by  testimony  of  witnesses 
mider  a  "  shall  bc  taken  under  a  commission  to  be  issued 
commis-  f^Qjj-^  ^j^jg  court,  or  from  any  circuit  court  of  the 
United  States,  under  the  direction  of  any  judge 
Commis-    thereof;  and  no  such  commission  shall  issue  but 

sion  to  IS  ^ 

terro^ato-   ^^P^^  iutcrrogatories  to  be  filed  by  the  party  ap- 
ries,  and    plyino[  for  the  commisslon,  and  notice  to  the  op- 

on  notice      -r   -'       o  '  r- 

to  file        posite  party  or  his  a^^ent  or  attorney,  accompanied 

crossinter-    •••■'-•'  o  •'  '  a 

rogat'ries.  with  a  copy  of  the  interrogatories  so  filed,  to  file 
cross  interrogatories  within  twenty  days  from  the 
service  of  such  notice  :  Provided^  ]imveve7\  that 
nothing  in  this  rule  shall  prevent  any  party  from 

Oral  testi-       •     .  ,  .  . 

mony        giviug   Oral  tcstimouy  in  open  court,   in  cases 
be  giveu^    whcrc,  by  law,  it  is  admissible. 

For  statutory  enactments  respecting  evidence  and  testimony, 
see  Powers  in  Common,  title  Testimony. 

Further  proof  may  be  ordered  instanter,  on  the  opening  of 
the  case.      The  Venus,  1  Whea.  112  ;  3  Cond.  508. 

Court  will  order  further  proof  when  evidence  is  contradictory 
and  ambiguous.      JVie  Samuel,  1  Whea.  9  ;  3  Cond.  466. 

Also  see  Schooner  Adeline,  9  Cra.  244  ;  3  Cond.  397.  The 
Friendscraft,  3  Whea.  14  ;  4  Cond.  189.  The  Atalanta,  3 
Whea.  409  ;  4  Cond.  285.  The  Venus,  5  Whea.  127  ;  4  Cond. 
613.  The  Frances,  8  Cra.  354  ;  3  Cond.  164.  The  Alary,  8 
Cra.  388  ;  3  Cond.  184.  The  Grotius,  8  Cra.  456 ;  3  Cond. 
276. 

Further  proof  not  allowed  when  papers  have  been  suppressed, 
unless  such  suppression  was  through  accident  or  mistake.   The 


SUPREME  COURT.  385 


St.  Lawrence,  8  Cra.  434  ;  3  Cond.  202.  T7ie  Fortune,  3  Wbea.  Rn.E  27. 
23G  ;  4  Cond.  244.  And  wlicn  inconsistent  with  the  proof  al- 
ready in  the  case.  The  Eiq^hrates,  8  Cra.  385  ;  3  Cond.  182. 
And  where  the  parties  have  been  guilty  of  gross  fraud,  or  mis- 
conduct, or  illegality.  The  Pizarro,  2  Whea.  227 ;  4  Cond. 
103.  The  Dos  Ilermanos,  2  Whea.  7G  ;  4  Cond.  39.  Further 
proof  refused.  Ship  Hazard's  Cargo  vs.  Camphcll,  9  Cra.  205. 
The  Frances,  8  Cra.  335  ;  3  Cond.  164. 

See,  also,  sustaining  the  rule,  Brig  James  Wells  vs.  United 
States,  7  Cra.  22  ;  2  Cond.  402.  Hawthorne  vs.  United  States, 
7  Cra.  107  ;  2  Cond.  434.  The  Frances,  8  Cra.  354  ;  3  Cond. 
164.      T/h'  London  Packet,  3  \Vliea.  371 ;    4  Cond.  162. 

Deposition  taken  on  further  proof,  in  one  cause,  can  not  be 
invoked  in  another.  The  Exjicrimeyit,  4  Whea.  84 ;  4  Cond. 
398. 

Where  a  party  refuses  or  neglects  to  comply  with  an  order 
for  further  proof,  courts  of  prize  generally  consider  such  dis- 
obedience as  fatal  to  his  claim.    La  Nereyda,  8  Whea.  108  ;  5 
Cond.  409. 
.     See  also  Rules  9  and  25,  and  notes. 

Rule  XXVIII. 

(  February   Term,   1821.  ) 

Whenever,  pending  a  writ  of  error  or  appeal  in  rule  28. 

this  court,  either  party  shall  die,  the  proper  re-  q„  J^^^y^ 

presentatives  in  the  personalty  or  realtj^  of  the  rep^rJ'seu-^ 

deceased  party,  according  to  the  nature  of  the  JJJay'c^ojne 

case,  may  voluntarily  come  in  and  he  admitted  |."iy'''"°^*' 

parties  to  the  suit,  and  thereupon  the  cause  shall 

he  heard  and  determined  as  in  other  cases ;  and  or  an  or- 
der may 
if  such  representatives  shall  not  voluntarily  he-  be  entered 

\  ^  for  their 

come  parties,  then  the  other  party  may  suggest  appear- 
ance. 
the  death  on  the  record,  and  thereupon,  on  mo- 
tion, ohtain  an  order,  that  unless  such  representa- 

25 


386  RULES  OF  THE  FEDERAL  COURTS. 

RULE  ».    tires  shall  become  parties  within  the  first  ten  days 
Couditioii   of  the  ensuino^  term,  the  party  moving  for  such 

ol  order.  j.  ^  o 

order,  if  defendant  in  error,  shall  be  entitled  to 

have  the  writ  of  error  or  appeal  dismissed ;  and 

if  the  party  so  moving  shall  be  plaintiff  in  error, 

he  shall  be  entitled  to  open  the  record,  and,  on 

hearing,  have  the  same  reversed  if  it  be  erroneous: 

Order  to     Prov'uhd^  ]iowevei\  that  a  copy  of  every  such  order 

SjTJto    shall  be  printed  in  some  newspaper  at  the  seat 

eprmtt    of  govcmment  in  which  the  laws  of  the  United 

States  shall  be   printed  by  authority,  for  three 

successive  weeks,  at  least  sixty  days  before  the 

beginning  of  the  term  of  the  supreme  court  then 

next  ensuing. 

This  order  made  on  the  argument  of  the  cause  of  Green  vs. 
Watkins,  6  Whea.  260 ;  5  Cond.  87. 

For  statutory  enactment  and  references  respecting  subject" 
matter  of  this  rule,  see  Poivcrs  in  Common,  title  Executors  and, 
Administrators. 

Rule  XXIX. 

(  February   Term,   1821.  ) 

RULE  29.  After  the  present  term,  no  cause  standing  for 
Cau^snot  argument  will  be  heard  by  the  court,  until  the 
Srs^sT*^  parties  shall  have  furnished  the  court  with  a 
wieHbr-  printed  brief  or  abstract  of  the  cause,  containing 
the  substance  of  all  the  material  pleadings,  facts, 
and  documents  on  which  the  parties  rely,  and  the 
points  of  la^y  and  fact  intended  to  be  presented 
at  the  argument. 

See  Rule  8,  and  notes  to  same. 


uisbed  the 
court. 
Briefwhat 
to  coDtain. 


SUPREME  COURT.  387 


Rule  XXX. 

C  February   Term,  1821.  ; 

In  all  cases  where  a  writ  of  error  or  an  appeal    iu;i,e  3-) 
shall  he  hronght  to  this  court  from  any  judgment  ou  writer 
or  decree  rendered  thirty  days  (before  the  term  to  Ip'j'.'eai!'^ 
which  such  writ  of  error  or  appeal  shall  be  re-  To  file  re- 
turnable), it  shall  be  the  duty  of  the  plaintiff  in 
error,  or  appellant,  as  the  case  may  be,  to  docket 
the  cause,  and  file  the  record  thereof  with  the 
clerk  of  this  court  within  the  first  six  days  of  the 
term  :  on  failure  to  do  which,  the  defendant  in  wi.r-n  de- 
error,  or  appellee,  as  the  case  may  be,  may  docket  iLiy'^tiJe 
the  cause,  and  file  a  copy  of  the  record  with  the 
clerk,  [and  thereupon  the  cause  shall  stand  for 
trial  in  like  manner  as  if  the  record  had  been  duly 
filed  within  the  first  six  days  of  the  term;  ]  or  at  or  have 
his  option,  he  may  have  the  cause  docketed'  and 


dismissed,  upon  producing  a  certificate  from  the 
clerk  of  the  court  wherein  the  judgment  or  decree 
was  rendered,  stating  the  cause,  and  certifying 
that  such  writ  of  error  or  appeal  had  been  duly 
sued  out  and  allowed. 

The  above  rule  re-enacted  by  the  first  clause  of  Rule  43, 
except  that  hi  place  of  the  words  included  in  the  parentheses  (  ) 
are  inserted  the  following,  "  before  the  commtncemcnt  of  the 
term  ;  "  and  in  place  of  the  words  included  in  the  brackets  [  ] 
are  inserted  the  following,  "  in  which  case  it  shall  stand  for 
argument  for  the  term.^' 

Sec  Rule  43  ;  also  Rules  IG  and  19. 


and  dis- 


388  RULES  OF  THE  FEDERAL  COURTS. 

Rule  XXXL 

(  Fcbniari/  Term,  1823.  ; 

RULE  31.  No  cause  will  hereafter  be  heard,  until  a  com- 
Causesnot  plete  record,  containing  in  itself,  without  reference 
withouVa  cdiunde^  all  the  papers,  exhibits,  depositions,  and 
re™?!rbe-  otlicr  procccdings  Avhich  are  necessary  to  the 
ing  iiied.     i^garing  in  this  court,  shall  be  filed. 

See  also  Rule  11,  and  the  cases  there  cited. 
Rule  XXXIL 

C  February   Term,  1824.  ; 

RULE  32.  No  certiorari  for  diminution  of  the  record  shall 
Certiorari  bc  hereafter  awarded  in  any  cause,  unless  a  mo- 
onij^on  tion  therefor  shall  be  made  in  writing ;  and  the 
motion.      fgg^s  Qj-^  which  the  same  is  founded  shall,  if  not 

admitted  by  the  other  party,  be  verified  by  affida- 
Motion  vit.  •  And  all  motions  for  such  certiorari  shall  be 
made.  °      made  at  the  first  term  of  the  entry  of  the  cause : 

otherwise  the  same  shall  not  be  granted,  unless 

upon  special  cause  shown  to  the  court,  accounting 

satisfactorily  for  delay. 

A  certiorari,  upon  a  suggestion  of  diminution  in  the  record, 
may  be  made  by  the  clerk,  and  need  not  be  made  by  the  judge 
of  the  court  below.  Stewart  vs.  Ingle,  9  Whea.  526  ;  5  Cond. 
659. 

When  certiorari  will  be  ordered.  Stimpson  vs.  Westchester 
Railroad  Company,  3  How.  553.  Field  vs.  Milton,  3  Cra.  514 ; 
1  Cond.  612.     Hohnes  ct  al.  vs.  Trout  et  al,  7  Pet.  171,  210. 

When  certiorari  upon  a  suggestion  of  diminution  will  not 
answer,  the  court  directs  a  special  certiorari  to  be  framed, 
suited  to  the  case.  Barton  vs.  Pettit  Sf  Bayard,  7  Cra.  288  ;  2 
Cond.  494. 


SUPREME  COURT.  389 


Rule  XXXIII. 

C  February  Term,  1824.  J 

In  all  cases  of  equity  and  admiralty  jurisdiction  i^^  ^  3; 

heard  in  this  court,  no  objection  shall  hereafter  be  in  equity 

allowed  to  be  taken  to  the  admissibility  ot  any  raity  cau- 

deposilion,  deed,  grant,  or  other  exliibit  lound  in  tinnsmev- 

.  ,  idfiice  not 

the  record  as  evidence,  unless  objection  was  taken  aiiowci, 
thereto  in  the  court  below,  and  entered  of  record ;  ina<ie  m 
but  the  same  shall  otherwise  be  deemed  to  have  beLw. ' 
been  admitted  by  consent.  • 

The  PIzarro,  2  Whea.  227  ;   4  Cond.  103. 

No  evidence  can  be  looked  into  in  this  court,  which  was  not 
before  the  circuit  court ;  and  the  evidence  certified  with  the 
record,  must  be  considered  here  as  the  only  evidence  before  the 
court  below.  If  part  of  the  evidence  is  omitted,  it  may  be 
brought  tfp  on  certiorari.  Holmes  et  al.  vs.  Trout  et  al„  7  Pet. 
171,  210. 

See  also  to  same  effect.  The  Pizarro,  2  Whea.  227  ;  4  Cond. 
103.  Boone  vs.  C7iihs,  10  Pet.  177,  208.  Mitchell  vs.  The 
United  States,  9  Pet.  711,  731.  Hi?idc's  Lessee  vs.  Longworth, 
11  Whea.  199;  6  Cond.  270.  Mech.  Bank  of  Alexandria  vs. 
Scton,  1  Pet.  299. 

Rule  XXXIV. 

C  Ftbniary  Term,  18i2'l.  ; 

[Iie-9riu(kd.]  On  Saturday  of  each  week  during  rule  si. 
the  sitting  of  the  court,  motions  in  cases  not  re-  on  Satur- 
quired  by  the  rules  of  the  court  to  be  put  upon 
the  docket  shall  be  entitled  to  preference,  if  such 
motions  shall  be  made  before  the  court  shall  have 
entered  upon  the  hearing  of  a  cause  upon  the 
docket. 

See  Rule  50. 


(lays,  mo- 
tions in  ca- 
ses not  oil 
the  iliicket 
to  be  made 


390  RULES  OF  THE  FEDERAL  COURTS. 

Rule  XXXV. 

(  February   Term,  1825.  ; 

niii.E  35.  After  the  present  term,  no  original  record  shall 
Original  bc  taken  from  the  supreme  court  room,  or  from 
not  to'  be    the  office  of  the  clerk  of  this  court. 

taken. 

By  Rule  12,  no  record  of  the  court  shall  be  suffered  hy  the 
clerk  to  be  taken  out  of"  his  oflic^e,  but  by  the  consent  of  the 
court ;  otherwise  the  clerk  shall  be  responsible  for  it. 

,  Rule  XXX\  I. 

C  Janiiary   Term,  1830.  ) 

RULE  36.  The  court,  on  the  second  day  in  each  term 
CaiJ^ar  hercaftcr,  will  commence  calling  the  cases  for 
Tci' byThe  argument  in  the  order  in  which  they  stand  on  the 
court.  docket,  and  proceed  from  day  to  day  during  the 
ready' to  term  in  the  same  order;  and  if  the  parties,  or 
be  heard;  gi^j^g];  of  them,  shall  bc  ready  when  the  case  is 
called,  the  same  will  be  heard ;  and  if  neither 
party  shall  be  ready  to  proceed  in  the  argument, 
passed,  to  the  cause  shall  go  down  to  the  foot  of  the  docket, 

go   to  foot  -I  ^  •    r 

of  docket,  unless  some  good  and  satisfactory  reason  to  the 
Ten  causes  contraiy  shall  be  shown  to  the  court.  That  ten 
eddaiii'.'^'  causes  only  shall  be  considered  as  liable  to  be 
called  on  each  day  during  the  term,  including 
the  one  under  argument,  if  the  same  shall  not  be 
Causes  not  concludcd  on  the  preceding  day.    No  cause  shall 

to  be  taken  i  i       -i  i 

up  out  of  be  taken  up  out  oi  the  order  on  the  docket,  or  be 
set  down  for  any  particular  day,  except  under 
special  and  peculiar  circumstances  to  be  shown 

Causes       to  thc  court.    Evcry  cause  which  shall  have  been 

CB.116Q 

twice,  to    twice  called  in  its  order,  and  passed,  and  put  at 


SUPREME  COURT.  391 


Ri;r,E  36. 


the  foot  of  the  docket,  shall,  if  not  again  reached 
during  the  term  it  was  called,  be  continued  to  g»  "'^ir  t« 

^  next lerm. 

the  next  term  of  the  court. 


After  a  case  lias  been  called  and  placed  at  the  foot  of  the 
docket,  the  court  can  not  take  it  up  on  motion,  and  assign  a 
day  for  its  argument,  when  other  causes  of  great  public  im- 
portance have  already  been  assigned  for  what  may  be  the  re- 
mainder of  the  term.      'Barry  vs.  Mercdn,  4  How.  574. 

The  court  will,  in  its  discretion,  continue  a  cause  on  account 
of  the  death  of  counsel.     Hunter  vs.  Fairfax's  Devisee,  3  Dall. 
^306. 

Rule  XXXVII. 

(January  Term,  1831.^ 

1.  In  all  cases  the  clerk  shall  take  of  the  plain-  rule  37 
tiff  a  bond  with  competent  security,  to  respond  to  riahuifv 
costs,  in  the  penalty  of  two  hundred  dollars,  or  a  cuniy^for 
oeposite  of  that  amount  to  be  placed  in  bank  ^"^^'*' 
subject  to  his  draft  {a), 

2.  In  all  cases  the  clerk   shall   have  fifteen  Fifteen  co- 

1  •  1     r  1  pii^s  of  re- 

copies  of  the  records  jDrmted  for  the  court,  pro-  cord  to  be 
vided  the  government  will  admit  the  item  in  the 
expenses  of  the  court. 

3.  In  all  cases  the  clerk  shall  deliver  a  copy  of  Each  par- 
the  printed  record  to  each  party.  And  in  cases  I^cnpy'^oT 
of  dismission  (except  for  Avant  of  jurisdiction)  or  ^^'^'^'-''^  • 
affirmance,  one  copy  of  the  record  shall  be  taxed  riti  when 
against  the  plaintiff,  which  charge  includes  the  copy  of 
charge  for  the  copy  furnished  him. 

In  case  of  reversal  and  dismission  for  want  of  ^^^  ° 

each  I'arty 


(«)  See  Rule  21. 


392 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  37.   jurisdiction,  each  party  shall  be  charo^ed  with  one 
to  pay  half  half  tlic  legal  fees  for  a  copy. 

the  CI  St  of 

Clerk  not  bound  to  docket  a  case,  until  a  bond  for  costs  has 
been  given.  Otvmgs  vs.  Tiernan's  Lessee,  10  Pet.  447.  Van 
Rensselaer  vs.  Watt's  Ex'rs,  7  How.  784. 

The  failure  of  the  plaintiff  to  give  the  fee  bond  required  by 
the  rule,  is  not  ground  for  a  dismissal  of  the  cause,  without  the 
clerk's  certificate  prescribed  by  Rules  30  and  43.  West  vs. 
Brashear,  12  Pet.  101. 

See  also  Justice  Baldwin's  opinion  in  5  Pet.  724,  dissenting 
from  the  third  clause  of  this  rule,  and  maintaining  that  the 
courts  have  no  power  to  regulate  costs  by  a  standing  rule. 

Each  party  is  liable  to  the  clerk  of  this  court  for  the  fees  due 
by  such  party,  and  it  is  immaterial  which  party  recovers  judg- 
ment.    Caldwell  vs.  Jackson,  7  Cra.  27G  ;  2  Cond.  490. 

A  copy  of  the  record  is  not  a  part  of  the  taxable  costs  of  suit, 
to  be  recovered  by  one  party  against  the  other.  The  party  who 
requests  the  copy  must  pay  the  clerk  for  it.     Ih. 

See  also  Rule  45,  and  cases  cited.  % 

The  record,  sent  from  the  court  below,  is  printed  at  the  ex- 
pense of  government,  and  the  clerk  has  the  same  executed,  as 
required  by  the  second  clause  of  this  rule.  The  statement  or 
ahstract,  or,  as  it  is  sometimes  called,  the  case,  referred  to  in 
Rule  9,  and  further  defined  by  Rules  29,  53  and  57,  prepared 
by  counsel,  and  are  printed  at  the  expense  of  the  parties  con- 
cerned ;  and,  of  course,  these  statements  or  abstracts  of  the 
respective  counsel,  with  the  points,  contain  their  particular 
views  of  the  facts  and  law  in  the  cause.  The  abstract  and 
points  are  printed  together,  and  usually  on  a  page  of  the  size 
of  those  used  in  law  books. 


Rule  XXXVIIL 

(January  Term,  1832.  J 

_  Hereafter,  the  judges  of  the  circuit  and  district 

Bills  of  ex-  courts  shall  not  allow  any  bill  of  exceptions,  which 


RULE  38. 


SUPREME  COURT.  393 


shall  contain  the  charge  of  the  court  at  large  to    nvis. :«. 
the  jury  in  trials  at  common  law,  upon  any  general  ceptions, 
exception  to  the  whole  of  such  charge.     But  that  7oilLiu. 
the  party  excepting  be   required   to   state   dis- 
tinctly the  several  matters  of  law  in  such  charge 
to  which  he  excepts;  and  that  such  matters  of 
law  and  those  only,  be  inserted  in  the  bill  of  ex- 
ceptions, and  allowed  by  the  court. 

The  mode  in  which  bills  of  exceptions  ought  to  be  taken  is 
explained  in  Walton  vs.  United  States  (9  Whea.  651),  and  in 
Ex  jHirtc  Martha  Bradstreet  (4  Pet.  102),  and  will  be  strictly 
adhered  to  by  this  court.     Broivn  vs.  Clark,  4  How.  4. 

See  also  Zcllcr's  Lessee  vs.  Eckart,  4  How,  289  ;  and  Stimp- 
son  vs.  WestcJiester  Railroad-  Co7npanij,  Ih.  380. 

A  bill  of  exceptions  should  state  that  evidence  was  offered  of 
the  facts,  upon  which  an  opinion  of  the  court  was  prayed.  Vassc 
vs.  Smith,  6  Cra.  226  ;  2  Cond.  353. 

No  exception  can  be  taken  in  this  court,  which  was  not  moved 
in  the  court  below,  or  which  does  not  appear  in  some  way  on 
the  record  below.     Barroiv  vs.  Read,  9  How.  366. 

\\niere  a  bill  of  exceptions  appears  upon  its  face  to  have  been 
regularly  taken,  the  court  can  not  presume  against  the  record. 
U.  S.  vs.  Hodge,  6  How.  279. 

Exception  does  not  lie  to  the  refusal  of  the  court  below  to 
continue  a  cause  to  another  term.  Sims  vs.  Hundley,  6  How.  1. 

This  court  can  notice  defects  in  the  pleadings,  not  noticed  in 
the  bill  of  exceptions,  nor  suggested  by  the  counsel  on  appeal. 
Garland  vs.  Davis,  4  How.  131. 

This  court  has  no  power  to  correct  errors  made  in  the  court 
below  in  framing  exceptions.  Stimpson  vs.  Westchester  Rail- 
road Company,  3  How.  553. 

A  bill  of  exceptions  is  altogether  unknown  in  chancery  prac- 
tice.    Ex  parte.  Story,  12  Pet.  339. 

As  to  exceptions  on  the  trial  of  an  issue  out  of  chancery,  see 
Brockctt  vs.  Brockett,  3  How.  691. 


394       •  RULES  OF  THE  FEDERAL  COURTS. 

Rule  XXXIX. 

(January  Term,  1833.^ 

lui.E  39.        1.  During  the  session  of  the  court,  any  gentle- 
Books        man  of  the  bar  having  a  cause  on  the  docket, 
library,'^     and  wishiug  to  usc  any  book  or  books  in  the  law 
t!!imdby    library,  shall  be  at  liberty,  upon  application  to 
olVheb".  the  clerk  of  the  court,  to  receive  an  order  to  take 
the  same  (not  exceeding  at  any  one  time  three) 
from  the  library,  he  being  thereby  responsible  for 
the  due  return  of  the  same  within  a  reasonable 
Clerk  to     timc,  or  when  required  by  the  clerk.     And  it  shall 
record  of    bc  tlic  duty  of  tlic  clcrk  to  keep,  in  a  book  for 
that  purpose,  a  record  of  all  the  books  so  delivered, 
which  are  to  be  charged  against  the  party  receiv- 
ing the  same.     And  in  case  the  same  shall  not 
Penalty      bc  SO  rctumcd,  thc  party  receiving  the  same  shall 
returliing.    DC  rcsponsiblc  for,  and  forfeit  and  pay  twice  the 
value  thereof;  as  also  one  dollar  per  day  for  each 
day's  detention  beyond  the  limited  time. 
.fudges  2.  During  the  session  of  the  court,  any  judge 

aL7  books  thereof  may  take  from  the  law  library  any  book 
or  books  he  may  think  proper,  he  being  responsi- 
ble for  the  due  return  thereof 


from  libra- 
ry. 


Rule  XL. 

(January   Term,   1833.^ 

niLE  40.  Whereas,  It  has  been  represented  to  the  court, 
rri.wTd  t^i^t  it  would  in  many  cases  accommodate  coun- 
wiTi'be'rl-  sel,  and  save  expense  to  parties,  to  submit  causes 
upon  printed  arguments.     It  is  therefore 

Ordered,  That  in  all  cases  brought  here  on  ap- 


ci'ivod   by 
the  court. 


SUPREME  COURT.  395 


peal,  writ  of  error,  or  otherwise,  the  court  will    m  i.n  w 
receive    printed   arguments,    ii'  the    counsel   on 
either  or  both  sides  shall  choose  so  to  submit  the 
same. 

The  filing  of  such  an  argument  puts  the  case  on  the  same 
footing  as  if  there  were  an  appearance  liy  counsel  (Rule  44) ; 
but  such  argument  must  be  signed  by  an  attorney  or  counsellor 
of  this  court  (Rule  51),  and  filed  within  the  first  ten  days  of  the 
term  (Rule  56),  Such  argument  will  not  be  received,  however, 
unless  it  has  been  filed  before  oral  argument  is  commenced 
(Rule  58). 

Rule  XLI. 

C  January  Term,  1834, ) 

Ordered,  That  the  original  opinions  of  the  court,    hole  4i. 
delivered  to  the  reporter,  be  filed  in  the  office  of  opinions 
the  clerk  of  the  court  for  preservation  as  soon  as  court  to 
the  volume  of  reports  for  the  term,  at  which  they  ^^'i,lMl,e 
are  delivered,  shall  be  published. 

By  Rule  42,  the  opinions  of  the  court  are  first  to  be  recorded, 
and  then  delivered  to  the  reporter. 

For  list  of  reporters  of  the  supreme  court,  see  Appendix  C. 

Rule  XL  II. 

(January  Term,  1835.^ 

All  the  opinions  delivered  by  the  court  since  R^  i-e  ^2. 
the  commencement  of  the  term  shall  be  forth-  opinions 
with  delivered  over  to  the  clerk  to  be  recorded,  court  to 

And.  all  opinions   hereafter   delivered   by   the  Ja/*^'' '" 
court  shall  immediately,  upon  the  delivery  there- 
of, be  in  like  manner  delivered  over  to  the  clerk 
to  be  recorded.     And  it  shall  be  the  duty  of  the 


term. 


396         RULES  OF  THE  FEDERAL  COURTS. 

RULE  4i  clerk  to  cause  the  same  to  be  forthwith  recorded, 
aud  deli-  and  to  deliver  the  originals  with  a  transcript  of 
therepmt-  thc  judgment  or  decree  of  the  court  thereon  to 
the  reporter,  as  soon  as  the  same  shall  be  re- 
corded, 
to  be  re-  And  all  the  opinions  of  the  court,  as  far  as 
during  practicable,  be  recorded  during  the  term,  so  that 
the  publication  of  the  reports  may  not  be  delayed 
thereby. 

This  court  will  not  rehear  a  cause  after  the  term  in  which  it 
is  decided.     Anon.,  7  Cra.  L 

The  reporter  receives  $1,300.00  salary  ;  is  required  to  have 
the  decisions  of  the  court  published  within  six  months  from  the 
adjournment  of  the  court ;  is  to  deliver  to  the  secretary  of  state, 
for  distribution  among  the  various  judicial  officers  of  the  go- 
vernment, one  hundred  and  fifty  copies  of  such  reports ;  and 
such  volumes  of  the  reports  are  to  be  sold  by  him  at  a  price 
not  exceeding  five  dollars  for  each  volume.  Act  1842,  c7i.  264,  §1. 

Rule  XLIIL 

(  January   Term,   1835. ) 

1.  In  all  cases  where  a  writ  of  error,  or  an 
appeal,  shall  be  brought  to  this  court  from  any 


RULE  43. 


On  writ  of 

^^o'J  i""^    judgment  or  degree  rendered  thirty  days  before 
"^laiTtiffto  ^^  commencement  of  the  term,  it  shall  be  the 
fiierccord;  (^^ty  of  the  plaintiff  in  error,  or  appellant,  as  the 
case  may  be,  to  docket  the  cause  and  file  the  re- 
cord thereof  with  the  clerk  of  this  court  within 
the  first  six  days  of  the  term.     If  he  shall  fail  so 
when  de-    to  do,  the  defendant  in  error,  or  appellee,  as  the 
may^fl'ie     casB  may  be,  may  docket  the  cause  and  file  a 
copy  of  the  record  with  the  clerk,  in  which  case 


SUPREME  COURT.  397 


it  shall  stand  for  argument  at  the  term  ;  or  at  his    m  le  « 
option  he  may  have  the  cause  docketed  and  dis-  ^r  have 
missed  upon  producing  a   certificate   from  the  d''ekei<-d 
clerk  of  the  court,  wherein  the  judgment  or  de-  '^ll^^' 
crce  was  rendered,  stating  the  cause  and  certify- 
ing that  such  writ  of  error  or  appeal  had  been 
duly  sued  out  and  allowed. 

2.  No  writ  of  error  or  appeal  shall  be  docketed,  Terms  of 
or  the  record  of  the  cause  filed  by  the  plaintiff  in  cord  Jttr 
error,  or  appellant,  after  the  first  six  days  of  the 
term,  except  upon  the  terms  that  the  cause  shall 
stand  for  argument  during  the  term,  or  be  con-  first  six 
tinned  at  the  option  of  the  defendant  in  error,  or  lerm.'' 
appellee.     But  in  no  case  shall  the  plaintiff  in 
error,  or  appellant,  be  entitled  to  docket  the  cause  riaintiff 
and  file  the  record,  after  the  same  shall  have  been  Serecord, 
docketed  and  dismissed  in  the  manner  provided  for  hlThT^n^ 
in  the   preceding   rule,   unless  by  order   of  the  excep^ou 
court,  or  with  the  consent  of  the  opposite  party. 

3.  In  all  cases  where  the  cause  shall  not  be 
docketed  and  the  record  filed  with  the  clerk  by  Record  not 

.-,       n  1   •    .         1  /t  xi  filed  ill  the 

either  party  until  after  thirty  days  from  the  com-  first  thirty 
mencement  of  the  term,  the  cause  shall  stand  ttSn,"tiie 
continued  until  the  next  term.  Vo  nver'to 


uext  term. 


See  Itules,  15,  19,  and  30. 

The  nile  to  dismiss  a  writ  of  error  for  not  filing  the  record 
within  the  first  six  days  of  the  term,  does  not  apply  to  cases 
where  the  record  is  filed  before  the  motion  is  made  to  dismiss. 
Bingham  vs.  Morris,  9  Cra.  99  ;  2  Cond,  431. 

The  rule  of  the  court  for  docketing  and  dismissing  causes 
has  never  been  applied  to  cases  where,  before  the  motion  is 


398         RULES  OF  THE  FEDERAL  COURTS. 


RULE  3.  made,  the  cause  has  been  actually  placed  on  the  docket.  Where 
a  motion  to  dismiss  and  a  motion  to  docket  are  made  contem- 
poraneously, the  court  will  allow  the  motion  to  docket.  Owings 
ct  ah.  vs.  Tiernan's  Lessee,  10  Pet.  24. 

A  party  may  take  a  second  appeal,  where  the  first  has  not 
been  legally  prosecuted.  United  States  vs.  Curry,  6  How.  106. 
Yeaton  vs.  Lenox,  8  Pet.  123  ;  and  this  court^will,  when  the 
case  appears  to  require  it,  order  a  supersedeas  to  stay  all  pro- 
ceedings pending  the  second  writ  of  error.  Hardeman  vs. 
Anderson,  4  How.  G40. 

In  order  to  entitle  a  party  to  have  a  cause  docketed  and 
dismissed  under  the  43d  rule  of  this  court,  the  certificate  of  the 
clerk  of  the  court  below  must  set  forth  the  accurate  titling  of 
the  cause.     Holliday  et  al.  vs.  Batson  et  al.,  4  How.  645. 

A  defendant,  in  an  appeal,  cannot  have  a  cause  docketed  and 
dismissed  for  the  failure  of  the  appellant  to  give  the  fee  bond  to 
the  clerk,  on  the  production  of  the  record  of  the  case  brought 
before  the  court  by  the  appellants,  witliout  the  certificate  of  the 
clerk  as  required  by  the  rule  (  West  vs.  Brashear,  10  Pet.  101). 
But  upon  a  motion  to  dismiss,  because  the  plaintiff  had  failed 
to  docket,  it  was  held,  that  the  production  of  the  writ  of  error, 
with  the  citation,  is  the  highest  evidence  that  the  writ  of  error 
has  been  duly  sued  out  and  allowed.  The  certificate  of  the 
clerk  of  the  circuit  court,  required  by  the  rule,  is  but  prima 
facie  evidence.     Amis  vs.  Pearle,  15  Pet.  211. 

The  judgment  of  dismissal  under  the  rule,  is  a  judgment  nisi ; 
and  it  may  be  stricken  out  at  any  time  during  the  court,  upon 
motion,  unless  it  appears  that  the  omission  to  file  the  record 
and  docket  the  case  has  been  injurious  to  the  interests  of  the 
defendant  in  error.  The  motion  to  reinstate  addresses  itself 
to  the  sound  discretion  of  the  court ;  and  care  will  always  be 
taken,  in  granting  the  rule,  that  no  injustice  is  done  to  the 
opposite  party.     Gwin  vs.  Breedlove,  15  Pet.  284. 

An  appeal  taken  from  the  circuit  to  the  supreme  court,  in  an 
admiralty  suit,  and  not  prosecuted,  will  be  dismissed  upon  the 
production  of  a  certificate  from  the  circuit  court  to  that  effect. 
The  Jonquil,  6  Whca.  452 ;  5  Cond.  135. 


SUPREME  COURT.  399 


The  meaning  of  the  43d  rule  is,  that  if  a  judgment  or  decree  rule  43. 
in  tlio  court  below  be  rendered  more  than  thirty  days  before 
the  coninicncement  of  the  term  of  this  court,  and  the  record  be 
not  filed  within  the  first  six  days  of  the  term,  the  appellee  or 
defendant  in  error  may  docket  the  case,  and  move  for  the  dis- 
missal as  the  rule  prescribes.  But  if  the  judgment  or  decree 
of  the  court  below  be  rendered  less  than  thirty  days  before  the 
commencement  of  the  term  of  this  court,  the  rule  does  not 
apply.      United  States  vs.  Boisdore's  Heirs,  7  How.  G5S. 

See,  also,  as  to  writs  of  error  and  appeals,  and  for  references 
respecting  the  same.  Supreme  Court  and  Circuit  Court,  titles 
Writs  of  error  and  Apjjcah. 

Rule  XLIV. 

(January    Tei'm,   1837.^ 

When  a  printed  argument  shall  be  filed  for  one    rule  44. 
or  both  parties,  the  case  shall  stand  on  the  same  Filing  of  a 
footing  as  if  there  were  an  appearance  by  counsel.  g","l^'„tta 

See  Rule  40,  and  Rule  51.  TcThy 

coiiusei. 

Rule  XLV. 

(  Janvary  Term,  1838.  J 

In  all  cases  where  any  suit  shall  be  dismissed    uile  4.'3. 
in  this  court,  except  where  the  dismissal  shall  be  ondismis- 

..  1111  11  ir         sal,  costs  to 

for  want  of  jurisdiction,  costs  shall  be  allowed  tor  -o  to  de- 
the  c|,efendant  in  error,  or  appellee,  as  the  case 
may  be,   unless   otherwise   agreed   by  the   par- 
ties {(i). 

In  all  cases  of  affirmance  of  any  judgment  or  on  affim- 
decree  in  this  court,  costs  shall  be  allowed  to  the  t..go'tode- 


ft'udaiii. 


[a)  Dismissal  of  causes  for  want  of  jurisdiction.  Sewall  vs. 
Chamberlain,  5  How.  6.  Barry  vs.  Mercein,  lb.  103.  Bafik 
of  Dubuque  vs.  U.  S.,  lb.  213.     Scott  vs.  Jones,  lb.  243.      Udell 


400  RULES  OF  THE  FEDERAL  COURTS. 

KULE  45.    defendant  in  error,  or  appellee,  as  the  case  may- 
be, unless  otherwise  ordered  by  the  court  (b). 
oa  rever-       In  all  cascs  of  rcvcrsals  of  any  iudffment  or 

sals,  costs  JO        o 

'"  P.^     decree  in  this  court,  except  where  the  reversal 

plaintiff.  * 

shall  be  for  want  of  jurisdiction,  costs  shall  be 
allowed  in  this  court  for  the  plaintiff  in  error,  or 
appellant,  as  the  case  may  be,  unless  otherwise 
ordered  by  the  court  (e). 
Costs  not       Neither  of  the  foreffoinj?  rules  shall  apply  to 

allowed  &         to  i-l    J 

fornrag't  cascs  wlierc  the  United  States  are  a  party ;  but 

the  United 

States.  . 

vs.  Davidson,  7  How.  769.  Sadler  vs.  Hoover,  lb.  646.  Cutler 
vs.  Rae,  lb.  729.  Stradcr  vs.  Baldwin,  9  Hov;^.  261.  Winston 
vs.  U.  S.,  3  How.  771.  Brown  vs.  Union  Bank  of  Florida,  4 
How.  465. 

When  costs  allowed,  on  dismissal  of  a  writ  of  error  for  want 
of  jurisdiction.  Winchester  \s.  Jackson,  3  Cra.  514  ;  1  Cond. 
612.  Contra  :  Montalet  vs.  Murray,  4  Cra.  46.  Mclcer  vs. 
Wattles,  9  Whea.  650  ;  5  Cond.  717.  Ingles  \s.  Coolidge,  2 
Whea.  363  ;   1  Cond.  155. 

{b)  Costs  on  affirmance  given  by  judiciary  act.  Act  1789, 
ch.  20,  §  22  (1  Stat,  at  Large,  85). 

(c)  When  judgment  is  reversed  for  want  of  jurisdiction,  it 
must  be  without  costs.  Montalet  vs.  Murray,  4  Cra.  46  ;  2 
Cond.  19. 

In  all  cases  of  reversal,  if  this  court  direct  tlie  court  b51ow  to 
enter  judgment  for  the  plaintiff  in  error,  the  court  below  will 
of  course  enter  the  judgment  with  the  costs  of  that  court.  Mc 
Knight  vs.  Craig's  AdnCrs,  6  Cra.  183. 

See,  sustaining  the  rule,  Bradstrect  vs.  Totter,  16  Pet.  317. 
Clarke  vs.  Harwood,  3  Dall.  342  ;   1  Cond.  157. 

Montalet  vs.  Murray,  4  Cra.  46  ;  2  Cond.  19,  overruled  so 
far  as  to  the  doubt  expressed  as  to  costs  in  ordinary  cases  of 
reversal. 


SUPREME  COURT.  401 


in  such  cases  no  costs  shall  be  allowed  in  this    rule  45 
court  for  or  against  the  United  vStates  {(J). 

In  all  cases  of  the  dismissal  of  any  suit  in  this  inca«csof 
court,  it  shall  be  the  duty  of  the  clerk  to  issue  a  this  court 
mandate,  or  other  proper  process,  in  the  nature  of  mandate 
procedendo,  to  the  court  below,  for  the  purpose  court  be 
of  informing-  such  court  of  the  proceedings  in  this 
court,  so  that  further  proceedings  may  be  had  in 
such  court  as  to  law  and  justice   may   apper- 
tain {e). 

(d)  United  States  vs.  Hooe,  3  Cra.  73 ;  1  Cond,  458.  United 
States  vs.  La  Vengeance,  3  Dall.  297  ;  1  Cond.  132.  United 
States  vs.  Barker,  2  Whea.  395  ;  4  Cond.  181.  The  Antelope, 
12  Whea.  546  ;  6  Cond.  629.  United  States  vs.  McLoiwre,  4 
How.  286.  United  States  vs.  Boyd,  5  How.  30.  But  the  United 
States  are  liable  for  their  own  costs.  United  States  vs.  Ring- 
gold, 8  Pet.  150. 

Costs  are  not  positively  limited  by  law,  but  are  allowed  in 
the  exercise  of  a  sound  discretion  of  the  court.  Canter  vs. 
American  and  Ocean  Insurance  Conqiany,  3  Pet.  319.  Hender- 
son vs.  G-riffin,  5  Pet.  151. 

A  copy  of  the  record  is  not  a  part  of  the  taxable  costs  of  suit, 
to  be  recovered  by  one  party  of  the  other.  The  party  asking 
(or  receiving)  it,  must  pay  the  clerk  for  it.  Caldwell  vs.  Jack- 
son, 7  Cra.  276  ;  2  Cond.  490. 

See  also  title  Costs,  ante. 

(c)  The  mandate  must  be  strictly  obeyed  by  the  inferior  court. 
Skillern's  Ex'rs  vs.  Meigs's  Ex'rs,  6  Cra.  267  ;  2  Cond.  366. 
Ex  parte  Story,  12  Pet.  339.  West  vs.  BrasJtear,  14  Pet.  51. 
Chaires  vs.  United  States,  3  How.  611.  Wahlcn  vs.  Bodlcy,  9 
How.  34. 

And  must  be  interpreted  from  itself.     The  Santa  Maria,  10 
Whea.  431 ;    6  Cond.  176.     Ex  parte  Sibbald,    12  Pet.  493, 
Mitchell  vs.  United  States,  15  Pet.  52. 
26 


402  RULES  OF  THE  FEDERAL  COURTS. 

RULE  45.  When  costs  are  allowed  in  this  court,  it  shall 
Costs  ai-  be  the  duty  of  the  clerk  to  insert  the  amount 
bTinsert*.  thcrcof  lu  the  body  of  the  mandate,  or  other  pro- 
mai'date°  ccss,  scut  to  the  court  below,  and  annex  to  the 
same  the  bill  of  items  taxed  in  detail. 


Rule  XL  VI. 

C  January  Term,  1838. ) 

RULE  46.        All  motions  hereafter  made  to  the  court  shall 
Motions  to  be  reduced  to  writing,  and  shall  contain  a  brief 
_^e^mwii-  g^^^gj^gjj^  of  the  facts  and   objects  of  the  mo- 
tion. 


But  is  in  no  manner  to  work  injustice.  Story  vs.  Livingston, 
13  Pet.  359. 

A  rehearing  will  not  be  granted  in  this  court,  in  an  equity- 
cause,  after  it  has  been  remitted  to  the  court  below,  to  carry 
into  effect  the  decree  of  this  court  according  to  its  mandate. 
Browder  vs.  Mc Arthur,  7  Wliea.  58  ;  5  Cond.  236.  Ex  parte 
SihhaU,  12  Pet.  488. 

The  supreme  court  can  not  issue  execution,  but  only  a  man- 
date, in  cases  removed  from  circuit  court  on  writ  of  error.  Act 
1789,  ch.  20,  §  24  (1  Stat,  at  Large,  85) ;  but  may  issue  execu- 
tion in  cases  removed  from  the  highest  court  of  a  state.  Act 
1789,  ch.  20,  §  25  (1  Stat,  at  Large,  85,  86). 

On  an  appeal  after  a  mandate,  nothing  is  brought  up  but  the 
subsequent  proceedings.  Himely  vs.  Rose,  5  Cra.  313  ;  2  Cond. 
266.  The  Santa  Maria,  10  Whea.  431  ;  6  Cond.  175.  Ex 
parte  Sihbald,  12  Pet.  488.  Boyce's  ExWs  vs.  Grundy,  9  Pet. 
290. 

See  Rule  37,  and  cases  there  cited. 

See  also  Justice  Baldwin's  opinion,  5  Pet.  724,  that  costs  can 
not  be  regulated  by  a  general  rule  of  court. 


SUPREME  COURT.  403 


Rule  XL VII. 

C  January  Term,  1838.  ) 

The  court  will,  at  every  future  session,  an-    rule  47. 
nounce  on  what  day  it  will  adjourn,  at  least  ten  DayTf  ad- 
days  before  the  time  which  shall  be  fixed  upon  ;  i'/,"  be°an- 
and  the  court  will  take  up  no  case  for  argument,  "'^""^^  ' 

when  cau- 

nor  receive  any  case  upon  printed  briefs,  within  scs  win 

not  be  tak- 

three  days  next  before  the  day  fixed  upon  for  en  up  for 

. .  argument, 

adjournment.  wr  rec'd 

on  printed 
briefs. 

Rule  XL VIII. 

(January  Term,  1841.  j 

The  clerk  shall  take  charge  of  the  books  of  the    rule  48. 
court,  together  with  such  of  the  duplicate  law  cierk  to 
books  as  Congress  may  direct  to  be  transferred  to  judae-s^ 
the  court,  and  arrange  them  in  the  conference  ''^'^'^'"y- 
room,  which  he  shall  have  fitted  up  in  a  proper 
manner ;  and  that  he  do  not  permit  such  books 
to  be  taken  therefrom,  by  any  one,  except  the 
judges  of  the  court. 


Rule  XLIX. 

C  January   Term,  1842. ; 

[  Rescinded.  ]  Printed  arguments  will  not  be  rule  49. 
received  under  the  fortieth  rule  of  the  court,  Regdlided 
unless  filed  within  forty  days  from  the  com- 
mencement of  the  term,  except  in  cases  which 
are  reached  in  the  regular  call  of  the  docket. 


llule  52. 


404  RULES  OF  THE  FEDERAL  COURTS. 


Rule  L. 

(December   Term,  1844.  _) 

RULE  50.        The  court  will  not  hear  arguments  on  Saturday, 

No  argil-    (unless   for  special  cause  it  shall  order  to  the 

iTeard  ou    coutrary)  but  will  devote  that  day  to  the  other 

Saturdays.  |J^gjJJ(^gg  of  the  court ;  and  that  on  Friday  in  each 

What  mo-  week,  during  the  sitting  of  the  court,  motions  in 

tied  to  pre-  cascs  not  Tcquircd  by  the  rules  of  the  court  to  be 

Friday!  °"  put  on  the  dockct  shall  be  entitled  to  preference, 

if  such  motions  shall  be  made  before  the  court 

shall  have  entered  on  the  hearing  of  a  cause  upon 

the   docket ;    and   the  Rule  No.  34,  adopted  at 

the  February  term,  1S24,  be,  and  the  same  is 

hereby  rescinded. 

Rule  LI. 

(  December   Term,  1 844  ) 

RULE  51.  No  printed  or  written  argument  will  be  here- 
PrinTTdar-  after  rcceivcd,  unless  the  same  shall  be  signed 
be^slgned  ^Y  ^u  attomcy  or  counsellor  of  this  court. 

torney    or        ^^^  Rules  40  and  44. 
counsellor. 

Rule  LIL 

(  December  Term,  1844.  ) 

[Rescinded.]  Printed  arguments,  under  the 
fortieth  rule,  will  be  received  hereafter,  and  at 
Rule  56.  ^Yie  present  term,  until  the  first  Monday  in  Feb- 
ruary in  each  and  every  term,  while  the  supreme 
court  continues  to  meet  on  the  first  Monday  in 
December ;  and  that  the  forty-ninth  Rule  of  the 


ROLE  52. 
Rescinded 


SUPREME  COURT.  405 


court,  adopted  at  January  term,  1842,  be,  and  the    rui-e  52. 
same  is  hereby  rescinded. 

Rule  LIII. 

{December   Term,  1848) 

No  counsel  will  be  permitted  to  speak  in  the    R"le  •'^ 
argument  of  any  case  in  this  court  more  than  Counsel  to 

^  speak   but 

two  hours,  without  the  special  leave  of  the  court  two  hours. 
granted  before  the  argument  begins. 

Counsel  will  not   be  heard,  unless  a  printed  Counsel 

^  not  nefird, 

abstract  of  the  case  be  first  filed,  together  with  ""less  a 

'-'  printed 

the  points  intended  to  be  made,  and  the  authori-  «b8t>-act 

■^  liled. 

ties  intended  to  be  cited  in  support  of  them, 
arranged  under  the  respective  points;  and  no 
other  book  or  case  be  referred  to  in  the  argu- 
ment. 

If  one  of  the  parties  omits  to  file  such  a  state-  statement 

'■  not  hied, 

ment,  he  can  not  be  heard,  and  the  case  will  be  cause  may 

be  heard 

heard  ex  parte  upon  the  argument  of  the  party  ^xparteM^ 
by  whom  the  statement  is  filed.  same. 

This  rule  to  take  effect  on  the  first  day  of  De- 
cember term,  1849. 

See  Rule  8,  and  cases  there  cited ;   also  Rule  29,  and  Rule 
57. 

Rule  LIV. 

(  December  Term,  1819.  ) 

[  Rescmded.  ]     When  an  appearance  is  not  en-    rule  &4. 
tered   on  the  record  for  either   the   plaintiff  or  Noa^ear- 
defendant,  on  or  before  the  second  day  of  the  Jed 


aiice  ente- 
at  se- 


406         RULES  OF  THE  FEDERAL  COURTS. 


RULE  54.    term  next  succeeding  that  on  which  the  case  is 
condttrm,  docketed,  it  shall  b.^  dismissed  at  the  costs  of  the 

case    will       i     •     A-rn 

bedismis-  plamtitt. 

sed. 

See  Rule  59,  bv  which  above  Rule  is  rescinded. 


Rule  LV. 

(  December  Term,  1849.  ) 

RULE  55.  When  a  case  is  called  for  argument  at  two 

Casecaii'd  succcssive  terms,  and  upon  the  call  at  the  second 

ment^uvo  term  neither  party  is  prepared  to  argue  it,  it  shall 

Sher^"  he  dismissed  at  the  costs  of  the  plaintiff,  unless 

pare^,wiu  sufficieiit  causc  is  shown  for  further  postpone- 

he  dismis-    , . 

Bed.  ment. 

Radford  vs.  Craig,  5  Cra.  289  ;  2  Cond.  260. 


Rule  LVL 

(  December  Term,   1849.  ) 

RULE  56.  Printed  arguments,  under  the  fortieth  Rule, 
PrinlTd  shall  not  hereafter  be  received,  unless  filed  within 
tiXl^fikHi  the  first  ten  days  of  the  term. 

within  ten 

days  of  See  Rule  40. 

^*"^"^'  Rule  52  rescinded  by  effect  of  this  rule. 

Rule  LVIL 

(  December  Term,    1849.  ) 

RULE  57.  Twelve  printed  copies  of  the  abstract,  points, 

Twelve  and  authorities  required  by  the  fifty-third  Rule, 

abJtrac^to  luust  bc  filcd  with  the  clerk  three  days  before  the 

and  Vow  case  is  called  for  argument;  nine  of  these  copies 

jstn  u-  ^^^  ^j^^  court,  one  for  the  reporter,  one  for  the 


SUPREME  COURT.  407 


opposing  counsel,  and  the  remaining  one  to  be    rule  67. 
retained  by  the  clerk.     This  order  to  take  effect 
on  the  first  day  of  May  next. 

See  Rules  8,  and  cases  there  cited  ;  29  and  53.     See  Rule 
37,  as  to  the  printing  of  abstract. 

Rule  LVIII. 

(  December  Term,    1850.  ) 

When  a  case  is  taken  up  for  trial,  upon  the  rule  m. 

regular  call  of  the  docket,  and  argued  orally  in  can^ar- 

behalfofonly  one  of  the  parties,  no  printed  argu-  jy^'byTne 

ment  will  be  received,  unless  it  is  filed  before  the  Ee'^h^'ard" 

oral  argument  begins,  and  the  court  will  proceed  pri,uedar- 

to  consider  and  decide  the  case  upon  the  ex  parte  fh!!^nlhef 

argument.     This  rule  to  take  effect  after  the  pre-  ^^'''^" 
sent  term. 

See  Rules  40  and  52. 

Rule  LIX. 

C  December   Term,   185L  ) 

When  a  case  is  reached  in  the  regular  call  of   rule  59. 
the  docket,   and  no   appearance   is   entered   for       ~ 
either  party,  the  case  shall  be  dismissed  at  the 
cost  of  the  plaintiff,  and  the   fifty- fourth   Rule, 
adopted  at  December  term,   1849,   be,   and   the 
same  is  hereby  rescinded. 


INDEX 


TO 


SUPREME  COURT  RULES 


Ruu. 

Abstract  of  cause  : 

What  to  contain 8,  (n)  29,  53 

To  be  furnished  before  argument 8,  (n)  29 

When  must  be  filed 8,  (nj  57 

Number  of  copies  to  be  filed 8,  (nJ  57 

How  disposed  of  by  clerk 57 

Effect  of  not  filing 8,  (nJ  53 

By  whom  printed 37  (n) 

Adjournment  : 

Day  of,  when  announced 47 

Within  three  days,  no  case  will  be  taken  up 47 

Admiralty  cases  : 

New  evidence  in,  how  taken 27 

Decisions  respecting 27  (n) 

Objections  to  evidence  in,  to  be  taken  below 33 

Decisions  respecting 33  (nJ 

Affidavits  : 

Amount  in  dispute  may  be  shown  by 13 

Decisions  on  this  point 13  (nJ 

For  attachment  to  collect  costs 21 

To  move  for  a  certiorari 32 


410  INDEX. 

RULK. 

Affirmance  : 

Costs  on 45 

Decisions  respecting 45  (n) 

Plaintiff  to  be  charged  for  one  copy  of  record 37 

Affirmation  : 

Of  counsellors  and  attorneys 6 

Allotment  : 

Of  judges,  1812 24 

1847 24  (n) 

Amendment ; 

Of  records,  power  of  court  over 11  (n) 

Amount  in  dispute  : 

May  be  shown  by  affidavit 13 

Decisions  concerning  the  same, 13  (n) 

Appeal  : 

When  to  be  docketed 43 

Decisions  respecting 43  (n) 

On  what  terms  plaintiff  may  docket,  after  first  six  days  of 

the  term 43 

Wlien  plaintiff  may  not  docket 43 

Not  docketed  within  thirty  days  after  beginning  of  term, 

cause  will  be  continued 43 

How  may  be  dismissed,  representatives  of  a  deceased  party 

not  coming  in 28 

When  defendant  may  have  dismissed 30,  43 

Decisions  respecting 43  (n) 

Appellant  : 

In  what  cases  to  docket  cause  and  file  record 19,  30,  43 

Within  what  time  to  do  same 19,  30,  43 

Decisions  respecting  above 43  (n) 

When  may  proceed  ex  parte 10,  15 


INDEX.  411 

RULB. 

Appellant  (continued)  : 

Decisions  respecting  same 15  (nj 

But  two  counsel  can  argue  for 23 

When  may  move  for  dismissal  of  a  cause 28 

Appearance  by  counsel  : 

By  the  filing  of  written  argument 44 

Wlien  cause  will  be  dismissed  for  want  of 54,  59 

When  to  be  made  to  subpoena 10 

Argument  : 

After  what  time,  none  will  be  heard 47 

How  many  counsel  may  make,  on  each  side 23 

Length  of,  except  on  special  leave 53 

Not  heard  on  Saturdays 50 

Printed,  will  be  received  by  court 40 

"         filing  of,  an  appearance 44 

"         must  be  signed  by  attorney  or  counsel 61 

"         when  must  be  filed 56 

"         when  will  not  be  received 58 

Attachment  : 

When  will  issue  for  costs 21 

Attorneys : 

Who  may  be  admitted  as 2 

Can  not  practice  as  counsellors 3 

Oath  or  affirmation  of,  on  admission 6 

Or  counsel  must  sign  printed  arguments 51 

Attorney  general  : 

Of  a  state,  when  process  served  on 10 

Appearance  of,  when  an  appearance  of  a  state 10  (n) 

Service  of  subpoena  on,  when  not  sufficient 10  (n) 

Bail  : 

Motion  to  discharge  from,  how  evidence  taken  on 9 

Supreme  court  may  take,  on  a  criminal  charge 9  (nJ 


412  INDEX. 

RULB. 

Bill  of  exceptions  : 

Allowed  by  judges  in  courts  below 38 

Not  to  contain  judges'  charge  in  full 38 

Matters  of  law  only  to  be  inserted 38 

Decisions  respecting 38  (n) 

Bond  : 

For  costs,  to  whom  given,  and  penalty  of 37 

Without,  clerk  not  required  to  docket  cause 37  (n) 

Books : 

Of  law  library,  who  may  take,  and  terms 39 

"  penalty  for  not  returning 39 

"  j^i<^g6s  may  take  as  they  wish 39 

Of  court  library,  where  to  be  put 48 

"  judges  can  only  take 48 

Brief  : 

Printed,  to  be  furnished  before  argument 29 

"         when  causes  will  not  be  received  on 47 

"         what  to  contain 8,  29,  53 

"         at  whose  expense 37  (n) 

Causes  : 

When  regarded  as  for  trial  for  a  term 19 

When  argued  at  first  term,  at  option  of  defendant 16,  43 

When  continued,  at  option  of  defendant 16,  43 

Will  not  be  heard  without  a  printed  brief 29 

Will  not  be  heard,  except  a  complete  record  filed 31 

On  docket,  when  court  commences  to  call 36 

How  many  called  each  day 36 

Go  to  bottom  of  calendar,  if  neither  party  ready 36 

Decisions  respecting  above 36  (n) 

Not  taken  out  of  their  order,  except  when 36 

Will  not  be  set  down  for  a  particular  day 36 

Called  twice,  goes  over  to  next  term 36 

May  be  submitted  on  printed  arguments 40 


INDEX.  413 

RVLS. 

Causes  (continued)  : 

Within  what  time  appellant  to  docket 43 

Decisions  respecting  same 43  (n) 

When  appellant  can  not  docket 43 

When  defendant  may  docket  or  have  dismissed 43 

When  defendant  may  move  to  have  dismissed 28,  43 

Decisions  respecting  same 43  (nj 

When  goes  over  to  next  term  for  delay  in  docketing 43 

Will  not  be  argued  within  three  days  of  adjournment 47 

When  not  received  on  printed  briefs 47 

When  heard  ex  parte,  in  behalf  of  appellant 10,  15 

When  heard  ex  parte,  on  behalf  of  defendant 19 

When  heard  ex  parte,  in  behalf  of  either 53,  58 

Certificate  of  clerk  : 

To  dismiss  cause,  what  to  contain . .      43 

Decisions  respecting 43  (n) 

Certiorari  : 

In  what  cases  awarded 32 

Motions  for,  when  and  how  made 32 

When  not  granted,  except  on  special  cause 32 

Decisions  respecting _   32  (n) 

Chancery : 

Practice  of  England,  how  far  adopted 7 

"                     may  be  altered  as  necessary 7 

"                    decisions 7  (nJ 

Circuits  : 

Allotment  of  judges  for 24 

Circuit  courts  : 

Judgments  of,  when  writ  of  error  to  first  term  of  this  court     43 
Judgment  reversed,  to  whom  goes  costs 22 


414  INDEX. 

Rdlb. 

Circuit  courts  (continued)  : 

May  issue  commissions  in  cases  of  further  proof 25 

"                  to  take  evidence  in  admiralty  cases  27 

Judges,  allotment  of 24 

"         when  may  send  up  original  papers 26 

"         what  exceptions  to  allow 38 


Citation  : 

Not  necessarily  a  part  of  the  record 11  (n) 

Clerk  : 

Appointment  of  John  Tucker  as 1 

How  appointed,  and  oath  of,  and  bond  required  of 1  (n) 

Fees  of,  double  those  allowed  in  state  courts 1  (n) 

Names  of,  since  1790 app. 

To  keep  his  office  at  seat  of  government 1 

Not  to  practice  as  counsel  or  attorney 1 

Not  to  allow  records  to  be  taken,  except  with  consent  of 

court 12 

Not  to  allow  original  records  to  be  taken  in  any  case  ....     35 

When  responsible  for  records  taken  out  of  office 12 

To  take  security  from  plaintiff  for  costs,  in  all  cases 37 

Not  required  to  docket  cause  without  security 37  (n) 

May  have  attachment  to  collect  costs 21 

To  have  printed  for  the  court  fifteen  copies  of  record 37 

To  deliver  one  copy  to  each  party 37 

When  to  allow  books  to  be  taken  from  the  library 39 

To  keep  a  record  thereof;   and  may  require  their  return. .      39 

To  preserve  and  record  opinions  of  the  court 41,  42 

In  cases  of  dismissal,  to  send  mandate  to  court  below. ...     45 

To  take  charge  of  the  books  of  the  court 48 

Not  to  permit  any  one,  except  the  judges,  to  take  them. . .     48 
To  distribute  copies  of  the  "  printed  abstract" 57 

Clerk's  certificate  : 

To  dismiss  cause,  what  to  contain 43 


INDEX.  415 

ROLB. 

Commissions  : 

For  farther  proof,  by  whom  issued 25 

In  admiralty  cases,  who  may  issue 27 

In  admiralty  cases,  terms  and  conditions  of 27 

Decisions  respecting 25,  27  (n) 

Continuance  of  cause: 

When  to  next  term 3G,  43 

When  at  option  of  defendant 16,  43 

When  on  death  of  counsel 23  (n) 

Costs  : 

Security  for,  from  plaintiff,  in  all  cases 37 

Security  for,  to  be  by  bond,  or  a  deposit 37 

Decisions  respecting 37  (n) 

Attachment  for,  on  bill  being  served 21 

To  whom,  in  circuit  court,  upon  reversal 22 

Decisions  on  this  point 22  (n) 

For  record,  when  each  party  charged  with 37 

On  dismissal,  to  defendant,  unless  otherwise  agreed 45 

"  decisions  respecting 45  (n) 

On  affirmance,  to  defendant,  unless  otherwise  ordered. ...      45 

"  decisions  respecting 45  (n) 

On  reversal,  to  plaintiff,  unless  otherwise  ordered 45 

"  decisions  respecting 45  (n) 

To  be  inserted,  with  taxed  items  in  mandate 45 

Not  allowed  for  or  against  United  States 45 

Decisions  respecting 45  (n) 

None  on  dismissal  for  want  of  jurisdiction 45 

None  on  reversal  for  want  of  jurisdiction 45 

Decisions  respecting 45  (n) 

When  cause  dismissed  for  want  of  appearance 54 

When  cause  has  been  called  at  two  terms  and  dismissed . .      55 
Decisions  respecting   45  (n) 

Counsel  : 

Who  may  be  admitted  as 2 

Oath  or  aflirmalion  of 6 


416  INDEX. 

RaLB. 

Counsel  (continued): 

May  be  admitted  as  attorneys 14 

To  furnish  a  brief  to  the  court 8 

But  two  to  argue  on  each  side 23 

When  this  rule  dispensed  with 23  (n) 

May  submit  cause  on  printed  arguments 40 

Appearance  of,  by  filing  printed  arguments 44 

Or  attorney  must  sign  such  arguments 51 

Not  to  speak  over  two  hours,  without  leave 53 

Will  not  be  heard,  unless  printed  abstract  be  first  filed. ...  53 

Can  not  be  heard  for  parties  not  on  the  record 23  (nj 

When  cause  will  be  continued  on  death  of 23  (nJ 

Court  : 

Clerk  to  keep  his  office  at  seat  of  government 1 

Process  of,  to  be  in  the  name  of  the  President 5 

To  be  furnished  with  statement  and  points 8 

To  be  furnished  with  abstract,  before  argument 29 

May  issue  commissions  for  further  proof 25 

May  issue  commissions  in  admiralty  cases 27 

When  original  papers  may  be  sent  to 26 

When  may  order  original  papers  from  court  below. ...   26  (n) 

When  commences  to  call  the  docket 36 

How  many  cases  will  call  each  day 36 

Will  decide  causes  on  printed  arguments 40 

Opinions  of,  to  be  filed  and  recorded  by  the  clerk 41,  42 

Opinions,  originals  to  be  delivered  to  the  reporter 42 

When  will  not  receive  cases  on  printed  briefs 47 

When  will  announce  time  of  adjournment 47 

When  will  cease  to  hear  further  arguments 47 

Cross  interrogatories  : 

On  commissions  in  admiralty  cases 27 

To  be  filed  in  twenty  days  after  notice 27 


INDEX.  417 

RVLB. 

Damac.ks  : 

Interest  a  part  thereof 18 

Rate  of,  when  writ  of  error  sued  out  for  delay 17 

Rate  of,  when  there  is  a  real  controversy 17 

To  what  time  calculated,  when  given 20 

Interest  can  not  be  allowed  on 17  (n) 

Within  discretion  of  the  supreme  court 17  (n) 

Nature  of,  in  an  admiralty  suit 17  (n) 

Death  of  party  : 

How  representatives  may  come  in 28 

How,  and  decisions  respecting  same 2S  (n) 

Death  of  counsel  : 

When  cause  will  be  continued  for 23  (n) 

Defendant  : 

Non-appearance  of,  on  service  of  subpoena,  appellant  may 

proceed  ex  parte 10,  15 

When  may  appear  and  proceed  to  trial 16 

When  may  have  cause  continued IG,  43 

When  may  move  for  dismissal  of  cause 2S,  43 

When  may  proceed  ex  parte 19 

But  two  counsel  can  argue  for 23 

Decisions  on  last  point 23  (n) 

Deposit  for  costs  : 

When  clerk  may  require 37 

Decisions  respecting 37  (n) 

Deposition  : 

Evidence  by,  on  motion  to  discharge  from  bail 9 

In  cases  of  further  proof 2-5 

Decisions  concerning  same 25,  27  (n) 

Diminution  of  record  : 

Certiorari  for,  how  awarded 32 

Decisions  respecting 32  (n) 

27 


418  INDEX. 

RULB. 

Dismissal  : 

Of  cause,  when  defendant  entitled  to 43 

Decisions  respecting 43  (n) 

Of  cause,  how  effected 43 

Of  cause,  representatives  of  deceased  party  not  coming  in  28 

Of  cause,  when  one  record  to  be  taxed  against  appellant. .  37 

Of  cause,  when  both  parties  to  pay  for  same 37 

Of  cause,  costs  on  to  defendant 45 

Of  cause,  decisions  respecting 45  (n) 

Of  cause,  mandate  to  be  sent  to  court  below 45 

Of  cause,  for  want  of  appearance,  and  costs  on 54 

Of  cause,  after  being  twice  called,  and  costs  on 55 

District  of  Columbia  : 

Judgments  in  courts  of,  when  may  be  heard,  at  first  term 
of  court,  after  rendition 19,  43 

District  courts  : 

Judges  of,  what  exceptions  to  allow 38 

Docket  : 

When  court  commences  to  call 36 

How  many  causes  of  called  each  day 36 

When  causes  to  go  to  foot  of 36 

Causes  put  at  foot  of,  can  not  be  taken  up 36  (n) 

When  plaintiff  to  put  causes  on 43 

A\l)en  defendunt  may  put  causes  on 43 

When  plaintiff"  may  not  put  causes  on 43 

Equity  causes  : 

All  objections  to  evidence  in,  to  be  made  in  court  below  33 

Decisions  on  above 33  (nj 

Evidence  : 

On  motion  to  discharge  bail,  how  taken 9 

New,  in  admiralty  cases,  how  taken 27 

Decisions  respecting 27  (n) 

Objections  to,  not  allowed,  unless  made  below 33 

Decisions  respecting 33  (nJ 


INDEX.  419 

ROLB. 

Ex    PARTE  : 

When  appellant  may  thus  proceed 10,   15 

Decisions  on  this  point 15  (n) 

\Vlicn  defendant  may  thus  proceed 19 

Fridays : 

What  motions  preferred 50 

Further  proof : 

Taken  by  commission 25 

Decisions  as  to 27  (n)  25  (n) 

Governor  of  a  state  : 

When  service  of  process  on 10 

Hearing  of  cause  : 

Not  without  a  printed  brief 29 

Not  unless  a  complete  record  filed 31 

Will  not  be  set  down  for  a  given  day 36 

When  goes  over  to  next  term 36 

May  be  by  pi'inted  arguments 40 

Not  within  three  days  of  adjournmenk 47 

Ex  parte  on  behalf  of  appellant .%. 10,  15 

Ex  parte  on  behalf  of  defendant 19 

Interest  : 

To  be  computed  as  part  of  damages 18 

But  can  not  be  allowed  on  the  damages 17  (n) 

Interrogatories  : 

On  commissions  in  admiralty  cases 27 

Judges  : 

Allotment  of,  for  the  circuits,  1812 24 

"  for  the  circuits,  1847 24  (n) 

List  of,  since  organization  of  supreme  court ('''PP-) 

Of  circuit  court,  may  send  uji  original  papers 26 

Of  courts  below,  what  exceptions  to  allow 38 


420  INDEX. 

RCLB. 

Judges  (continued)  : 

Charge  not  to  be  inserted  in  bill  of  exceptions 38 

To  have  free  use  of  books  in  law  library 39 

Alone  to  take  books  from  court  library 48 

Judgments : 

Of  circuit  courts,  when  may  be  brought  up  to  this  court, 

first  term  after  being  rendered 43 

Of  courts  in  District  of  Columbia,  when  do 19,  43 

Of  circuit  court  reversed,  to  whom  costs  below 22 

Transcrijjt  of,  for  reporter 42 

Damages  on,  how  calculated 20 

King's  bench  : 

Practice  of,  how  far  adopted 7 

Practice  of,  may  be  altered 7 

Law  : 

Matters  of,  only  to  be  inserted  in  bills  of  exceptions 38 

Mandate  : 

To  be  sent  to  court  below,  on  dismissal 45 

Decisions  respecting 45  (n) 

What  the  nature  cf,  and  why  sent   45 

Costs,  with  taxed  items,  to  go  with 45 

Motions  : 

To  be  reduced  to  writing  and  what  to  contain 46 

To  discharge  on  bail,  evidence  in 9 

To  substitute  representatives  of  deceased  party 28 

For  certiorari  in  case  of  diminution 32 

To  dismiss  cause, 43 

What  ones  entitled  to  a  preference,  and  when 50 

New  evidence  : 

In  admiralty  causes,  how  taken 27 

Non-appearance  : 

Of  defendant,  to  subpoena,  effect  of 10 

Of  defendant,  to  writ  of  error,  effect  of 15 

Generally,  effect  of 54 


INDEX.  421 

Rdlr. 

Notice  : 

Of  interrogatories  on  commissions  in  admiralty 27 

To  file  cross  interrogatories 27 

To  appear  to  subpcena 10 

Oath  : 

Of  counsellors  and  attorneys 6 

Office,  clerk's  : 

To  be  kept  at  seat  of  government 1 

Objections  to  evidence  : 

Must  be  taken  in  court  below 33 

Opinions  of  court  : 

To  be  filed  with  the  clerk -• 41 

To  be  recorded,  and  when 42 

Originals  to  be  delivered  to  reporter 42 

Oral  tkstimony  : 

When  may  be  given  in  open  court 27 

Law  respecting  same 27  fnj 

Decisions  respecting  same ". 27  fnJ 

Orders  : 

Defendant  not  appearing,  to  subpoena 10 

To  issue  commission  for  further  proof 25 

To  issue  commission  in  admiralty  and  equity  cases 27 

To  dismiss  or  reverse  writ  of  error  or  appeal,  if  represen- 
tatives of  deceased  party  do  not  appear 28 

In  such  case,  when,  where,  and  how  long  to  be  printed. . .  28 

For  certiorari  on  diminution 32 

Original  papers  : 

When  may  be  sent  from  court  below 26 

When  may  be  ordered  from  court  below 26  ('nj 

When  a  part  of  the  proceedings  below 26 


422  INDEX. 

Rule. 

Original  records  : 

Not  be  taken  from  clerk's  office  or  court 35 

Parties : 

May  show  amount  in  dispute  by  affidavit 13 

To  give  secui'ity  for  costs 21 

Attachments  may  issue  against,  for  costs 21 

To  insert  only  matters  of  law  in  bills  of  exceptions 38 

Not  appearing  at  second  term,  cause  dismissed 54 

Death  of,  representatives  may  come  in 28 

I. aw  and  decisions  respecting  same 28  (n) 

Payment  of  costs  : 

Attachment  to  compel 21 

Plaintiff : 

May  proceed  ex-parte,  if  defendant  not  appears  on  service 

of  subpcEna 10 

May  proceed  ex  parte,  if  defendant  in  error  does  not  ap- 
pear    15 

Decisions  on  this  point 15  (n) 

When  to  file  record  and  docket  cause 43 

Failing  to  file  record,  defendant  may  do  so 43 

But  two  counsel  may  argue  for 23 

May  have  record  reversed,  if  representatives  of  deceased 

defendant  do  not  come  in 28 

Liable  to  costs,  on  dismissal  for  want  of  appearance 54 

Liable  to  costs,  on  dismissal  for  neglect  to  argue 55 

Points  : 

To  be  fiirnished  the  court 8 

Practice  of  court  : 

How  far  controlled  by  that  of  king's  bench,  and  chancery 
of  England 7 

President  : 

Process  of  court  to  be  in  his  name 5 


INDEX.  423 

Re  LB. 

PrINTKH    AnSTRACT   : 

Twelve  copies  to  be  filed  with  clerk '07 

When  to  be  filed,  and  how  disposed  of 57 

Printed  argumknts  : 

Causes  may  be  submitted  on 40 

Filing-  of,  an  appearance 44 

Must  be  siffned  by  attorney  or  counsel 51 

When  must  be  filed 56 

When  will  not  be  received 58 

Printkij  briefs  : 

After,  when  case  will  not  be  received  on 47 

Printed  statement  : 

Twelve  copies  to  be  filed,  and  what  to  contain 8,  53,  57 

When  filed,  and  how  disposed  of 8,  53,  57 

Effect  of  not  filing 8,  53,  58 

Not  furnished,  cause  will  be  dismissed — decisions 8  (n) 

Printing  records : 

Expense,  how  borne 37 

Process  : 

To  be  in  the  name  of  the  President 5 

Afi^ainst  a  state,  on  whom  to  be  served 10 

To  compel  payment  of  costs 21 

In  nature  of  a  procedendo  to  the  court  below 45 

Procedendo : 

Process  in  nature  of,  when  to  issue 45 

Records  : 

When  and  how  may  be  taken  from  clerk's  office, 12 

Original,  not  to  be  taken 35 

Record  : 

True  copy  of,  to  be  sent  on  writ  of  error 11 

Citation  not  necessarily  a  part  of 11  (n) 


424  INDEX. 

Rule. 

Record  (continued)  : 

Power  of  court  over,  to  amend,  and  generally 11  (n) 

"When  to  be  delivered,  that  cause  may  stand  for  trial  in  the 

course  of  the  term 19 

When  so  delivered,  as  that  cause  to  be  continued 19 

Complete  one  must  be  filed,  before  argument 31 

Certiorari  in  case  of  diminution  of 32 

Fifteen  copies  to  be  printed  for  court 37 

Expense  of  printing  same 37 

One  copy  to  be  given  each  party 37 

When  each  party  to  pay  half  fees  for  a  copy 37 

When  plaintiff  may  file 43 

AVhen  defendant  may  file 43 

When  plaintiff"  may  not  file 43 

When  filed  so  that  cause  may  be  continued 43 

Reporter  : 

To  use  original  opinions  of  the  court 42 

How  long  may  retain  the  same 41 

To  have  transcript  of  judgment  or  decree 42 

Salary  of,  &c i2  (n) 

Representatives : 

Of  a  deceased  party,  how  may  come  in 28 

"                     how  may  be  brought  in 28 

"                    effect  of  not  coming  in 28 

"                    law  and  decisions  respecting 28  (n) 

Return  to  writ  of  error  : 

How  made 10 

Reversal : 

Of  cause,  if  representatives  do  not  come  in 28 

Of  judgment  or  decree,  costs  on 22,  45 

Decisions  respecting 45  (n) 

Saturdays : 

No  arguments  heard  on 50 


INDEX. 


42.0 


--  Uri.E 
OEAL  : 

To  be  attached  to  return  of  writ  of  error H 

Security  : 

For  costs,  in  what  to  be 21 

Statement  of  case  : 

To  be  furnished  tlic  court S 

What  must  contain 29,  r>3 

Twelve  copies  to  be  filed 57 

How  disposed  of 57 

Consequence  of  not  filing 53 

SUBPCENA  : 

VVlicii  must  be  served   ]  0 

Time  of  service  of,  when  state  is  a  party 10  f/ij 

Effect  of  not  appearing  on  service  of 10 

Sum  in  dispute  : 

May  b^shown  by  affidavit 13 

DecisioBS  respecting 13  /fij 

Sureties  for  costs : 

Attachments  may  issue  against 21 

Time  : 

Service  of  subpcrna 10 

Within  which  plaintiff  may  file  record 43 

Wlien  plaintiff  may  not  file  record 43 

When  defendant  may  file  record ...  43 

To  file  cross  interrogatories  in  admiralty  and  equity  cases  27 

Of  docketing  writs  of  error  and  appeals 43 

In  wliich  to  file  printed  arguments 06 

In  wliicli  to  file  printed  abstracts 57 

Testimony  : 

When  taken  by  commission 25,  27 

Decisions  respecting  same   25,  27  fnj 

When  oral  in  open  court 27 


426  INDEX. 

RCLB. 

Testimony  (continued)  : 

Law  respecting  same 27  (n) 

Decisions  respecting  same 27  (n) 

Trial  : 

When  at  first  term 16,  19 

When   may  be  continued  at  option  of  defendant  to  next 

term 16,  19,  43 

When  goes  over  in  any  event 43 

Value  of  amount  in  dispute  : 

May  be  determined  by  affidavit 13 

Decisions  on  this  point 13  (nj 

Viva  voce  testimony  : 

When  not  allowed 9 

When  received 27 

United  States : 

Costs  not  allowed  for  or  against *. 4t'> 

Witnesses  : 

In  admiralty  cases,  testimony  of  how  taken 27 

Writ  of  error  : 

Return  to  how  made 11 

When  to  issue,  that  cause  may  be  tried  at  first  term 16 

When  issues  so  that  cause  is  continued 16 

Damages,  when  sued  out  for  delay 17 

Damages,  when  a  real  controversy 18 

How  dismissed,  case  of  deceased  party 28 

How  reversed,  case  of  deceased  party 28 

When  plaintiff'  may  docket 43 

Wlien  plaintiff  may  have  a  second 43  (n) 

Decisions  respecting 43  fn) 

When  plaintiff  may  not  docket 43 

When  defendant  may  docket 43 

When  defendant  may  have  dismissed 43 


INDEX.  427 

KltE. 

Writ  of  error  (continued)  : 

Dismissal  of,  costs  to  ilcfcn Jant 45 

Affirmance  of,  costs  to  defendant 45 

Reversal  of,  costs  to  plaintiff" 45 

Dismissal  of  for  want  of  appearance,  plaintiff"  to  pay  costs  54 

Dismissal  of  for  failure  to  argue,  plaintiff"  to  pay  costs  ...  55 


RULES  OF  PRACTICE 


COURTS    OF    EQUITY  OF  THE   UNITED    STATES, 


PROMULGATKD    BY    THK 


SUPREME  COURT  OF  THE  UNITED  STATES, 


JANUARY  TERM,  1842; 


IN  PURSUANCE  OF  THE  ACT  OF  1892,    CHAP.  30,  §  2. 


RULES  OF  PRACTICE 


FOR     THE 


COURTS  OF   EQUITY. 


Ri;i-E  1 


Circuit 
courts    rtl- 


RULE    I. 

The  circuit  courts,  as  courts  of  equity,  shall  be 
deemed  always  open  for  the  purpose  of  filing  bills, 
answers  and  other  pleadings,  for  issuing  and  re-  waysopuu 
turning  mesne  and  final  process  and  commissions^  imrpu.es. 
and  for  making  and  directing  all  interlocutory 
motions,  orders,  rules  and  other  proceedings, 
preparatory  to  the  hearing  of  all  causes  upon  their 
merits. 

The  circuit  courts,  as  courts  of  equity,  shall  be  always  open 
for  the  purpose  of  filing  bills,  petitions,  answers,  pleas  and  other 
pleadings,  for  issuing  and  returning  mesne  and  final  process 
and  commissions,  and  for  making  and  directing  all  interlocu- 
tory motions,  orders,  rules  and  other  proceedings  whatever, 
preparatory  to  the  hearing  of  all  causes  pending  therein  upon 
their  merits.  And  it  shall  be  competent  for  any  judge  of  the 
court,  upon  reasonable  notice  to  the  parties,  in  the  clerk's 
office,  or  at  chambers,  and  in  vacation  as  well  as  in  term,  to 


432         RULES  OF  THE  FEDERAL  COURTS; 

RULE  1,     make,  direct,  tint!  award  all    siicli  process,   commissions  and 
—         interlocutory  orders,  rules,  and  other  proceedings,  whenever 
the  same  are  not  grantablc  of  course  according  to  the  rules  and 
practice  of  the  court.     Act  1842,  ch.  ISS,  §  5. 

Rule  II. 
RULE  2.        The  clerk's  office  shall  be  open,  and  the  clerk 
Clerk's  of-  shall  bc  in  attendance  therein  on  the  first  Hon- 
or fi S"    day  of  every  month,  for  the  purpose  of  receiving, 
of"eH<h     entering,  entertaining  and  disposing  of  all  mo- 
^!'hal  Vu°/-  tions,  rules,  orders  and  other  proceedings,  which 
sudr.iays  are  grantable  of  course  and  applied  for,  or  had  by 
S^,!^  ^"''  the  parties  or  their  solicitors  in  all  causes  pending 
in  equity,  in  pursuance  of  the  rules  hereby  pre- 
scribed. 

Rule  III. 

RULE  3.        Any  judge  of  the  circuit  court,  as  well  in  vaca- 

vvimt  or-    tion  as  in  term,  may,  at  chambers,  or  on  the  rule 

fcrjudge  days,  at  the  clerk's  office,  make  and  direct  all 

irLrm'*"  such  interlocutory  orders,  rules  and  other  pro- 

a...   vaca-  ^^gj^j^^g^  preparatory  to  the  hearing  of  all  causes 

upon  their  merits,  in  the  same  manner  and  with 

the  same  effect  as  the  circuit  court  could  make 

and  direct  the  same  in  term,  reasonable  notice 

upon  rea-  of  tlic  application  tlicrcfor  being  first  given  to  the 

notice   to  adverse  party,  or  his  solicitor,  to  appear  and  show 

verse'' par-  cause  to  thc  coutrary  at  the  next  rule  day  there- 

*^'  after,  unless  some  other  time  is  assigned  by  the 

judge  for  the  hearing. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  433 

See  Statutory  Enactment  appended  to  Rule  1.  rule  a 

Query  1 — Can  circuit  courts  be  lioklcn  Ly  the  two  judges  in 
any  district  at  the  same  time,  in  different  rooms  ?  United  States 
vs.  Flowery,  8  Laio  Rep.,  258. 

We  think  not.  By  the  act  of  1793,  ch.  22,  §  1,  the  circuit 
court  is  made  to  consist  of  two  judges — one  a  justice  of  the 
supreme  court,  and  the  other  the  district  judge  of  the  district  — 
except  in  certain  specific  cases,  when  one  judge  may  sit.  When 
the  district  judge  is  absent,  or  has  been  of  counsel,  or  is  con- 
cerned in  interest  in  the  cause,  the  judge  of  the  supreme  court 
alone  may  hold  the  circuit.  Act  1793,  ch.  22,  §  1.  And  when 
only  one  of  the  judges  required  to  hold  a  circuit  court  shall  at- 
tend, such  court  may  be  held  by  the  judge  attending.  Act 
1802,  ch.  31,  §  4.  From  these  enactments  it  follows  that  when 
both  judges  are  present,  ihey  are  both  necessary  to  constitute  a 
court,  except  where  the  district  judge  is  interested,  in  which 
particular  cases  he  is  disqualified  from  acting.  In  other  cases 
he  must  act  with  the  other  judge.     [  Ed.  ] 


Rule  IV. 

All  motions,  rules,  orders  and  other  proceedings 
made  and  directed  at  chambers,  or  on  rule  days 


RULE  4. 


All  mo- 


at the  clerk's  office,  whether  special  or  of  course,  V°"*  """ 

ders,  &c., 

shall  be  entered  by  the  clerk  in  an  order  book,  to  '"  ^e,*""- 

terediuan 

be  kept  at  the  clerk's  office  on  the  day  when  they  order 

*■  .  lj""k ; 

are  made  and  directed,  which  book  shall  be  open  ^^•'i'^h  is 

^  to  be  al- 

at  all  office  hours,  to  the  free  inspection  of  the  "ays open 

for  in8[,e<;- 

parties  in  any  suit  in  equity,  and  their  solicitors,  ^ion- 
And  except  in  cases  where  personal  or  other  no- 
tice is  specially  required  or  directed,  such  entry  onief' 
in  the  order  book  shall  be  deemed  sufficient  notice  ^^'hen 
to  the  parties  and  their  solicitors,  without  further  suSkfeat 

00  notice  to 

parties. 


434 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  4. 


Notice  to 
solicitors 
wbeii  no- 
tice to 
parties. 


Solicitors 
residing 
near  to- 
gether, 
time  of 
notice 
may  he 
abridged. 


service  thereof,  of  all  orders,  rules,  acts,  notices 
and  other  proceedings  entered  in  such  order  book, 
touching  any  and  all  the  matters  in  the  suits, 
to  and  in  which  they  are  parties  and  solicitors. 
And  notice  to  the  solicitors  shall  be  deemed  notice 
to  the  parties  for  whom  they  appear  and  whom 
they  represent,  in  all  cases  where  personal  notice 
on  the  parties  is  not  otherwise  specially  required. 
AVhere  the  solicitors  for  all  the  parties  in  a  suit 
reside  in  or  near  the  same  town  or  city,  the  judges 
of  the  circuit  court  may,  by  rule,  abridge  the  time 
for  notice  of  rules,  orders  or  other  proceedings, 
not  requiring  personal  service  on  the  parties,  in 
their  discretion. 


RULE  5, 

Motions  as 
<it  course ; 
what  ones 
so  deem- 
ed. 


When  may 
be  sus- 
pended, 
&c. 


Rule  V. 

All  motions  and  applications  in  the  clerk's 
office  for  the  issuing  of  mesne  process  and  final 
process  to  enforce  and  execute  decrees,  for  filing 
bills,  answers,  pleas,  demurrers  and  other  plead- 
ings; for  making  amendments  to  bills  and  an- 
swers ;  for  taking  bills  pro  confesso ;  for  filing 
exceptions,  and  for  other  proceedings  in  the  clerk's 
office,  which  do  not,  by  the  rules  hereinafter  pre- 
scribed, required  any  allowance  or  order  of  the 
court,  or  of  any  judge  thereof,  shall  be  deemed 
motions  and  applications,  grantable  of  course  by 
the  clerk  of  the  court.  But  the  same  may  be 
suspended,  or  altered,  or  rescinded  by  any  judge 
of  the  court,  upon  special  cause  shown. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  435 

Rule  VI. 
All  motions  for  rules  or  orders  and  other  pro-     rui,e6. 
ceedings,  which  are  not  granlable  of  course,  or  Motions 
without  notice,  shall,  unless  a  different  time  be  course,  to 
assigned  by  a  judge  of  the  court,  be  made  on  a  on  L"^ rule 
rule  day,  and  entered  in  the  order  book,  and  shall  leid.TJd 
be  heard  at  the  rule  day  next  after  that  on  which  ne^t  rule 
the  motion  is  made.     And  if  the  adverse  party,    ''^' 
or  his  solicitor,  shall  not  then  appear,  or  shall  not 
show  good  cause  against  the  same,  the  motion 
may  be  heard  by  any  judge  of  the  court  ex  parte,  whenmay 
and  granted,  as  if  not  objected  to,  or  refused,  in  exparL 
his  discretion. 


PROCESS. 

Rule  VII. 

The  process  of  subpoena  shall  constitute  the     rule?. 

proper  mesne  process  in  all  suits  in  equity,  in  the  g^^i^ 

first  instance,  to  require  the  defendant  to  appear 

and  answer  the  exisrency  of  the  bill ;  and  unless  '^^'^p®* 
~       •'  '  appear- 

otherwise  provided  in  these  rules,  or  specially  or-  ^^^^  ^^^^ 

dered  by  the  circuit  court,  a  writ  of  attachment,  vvrits  of 

and  if  the  defendant  cannot  be  found,  a  writ  of  ^en't'^' 

sequestration,  or  a  writ  of  assistance  to  enforce  a  ffi^^^^ja- 

'''  noil  mici 

delivery  of  possession,  as  the  case  may  require,  ^^^^^^^"^^^1 

shall  be  the  proper  process  to  issue  for  the  pur-  "„  orde"''" 

pose  of  compelling  obedience  to  any  interlocutory  ^^"^^^ 
or  final  order  or  decree  of  the  court. 


[irrna, 
the  first 
process  to 


436 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  7. 


A  rule  upon  a  party  to  show  cause  why  an  attachment 
should  not  issue  against  him  for  a  contempt,  must  be  served 
personally;  but  if  he  evades  the  service,  or  other  circumstances 
render  it  proper,  the  court  will  order  that  service  at  his  last 
place  of  abode  shall  be  deemed  sufficient.  Ilollingsworth  vs. 
Duane,  Wallace  14L 

Motions  and  affidavits  for  attachments  in  civil  suits,  are  pro- 
ceedings on  the  civil  side  of  the  court,  until  the  attachments 
issue,  and  are  to  be  entitled  with  the  names  of  the  parties;  but 
as  soon  as  the  attachments  issue,  the  proceedings  are  on  the 
criminal  side.      United  States  vs.  Wayne,  Wallace  134. 

The  judiciary  act  of  1789,  ch.  20,  does  not  contemplate 
compulsory  process  against  any  person  in  any  district,  unless 
he  be  an  inhabitant  of,  or  found  within,  the  same  district  at  the 
time  of  the  service  of  the  writ.    Picquet  vs.  Swan,  5  Mason  35. 


RULE  8. 

Final  pro- 
cess to  eu- 
force  de- 
crees; 
different 
kinds  of. 


Writ  of  at- 
tachmeut 
to  enforce 
the  same. 


Rule  VIIL 

Final  process  to  execute  any  decree  may,  if  the 
decree  be  solely  for  the  payment  of  money,  be  by 
a  writ  of  execution,  in  the  form  used  in  the  cir- 
cuit court  in  suits  at  common  law  in  actions  of 
assumpsit.  If  the  decree  be  for  the  performance 
of  any  specific  act,  as,  for  example,  for  the  exe- 
cution of  a  conveyance  of  land,  or  the  delivering 
up  of  deeds,  or  other  documents,  the  decree  shall, 
in  all  cases,  prescribe  the  time  within  v/hich  the 
act  shall  be  done,  of  which  the  defendant  shall 
be  bound  without  further  service  to  take  notice  ; 
and  upon  affidavit  of  the  plaintiff,  filed  in  the 
clerk's  office,  that  the  same  has  not  been  com- 
plied with  within  the  prescribed  time,  the  clerk 
shall  issue  a  writ  of  attachment  against  the  de- 
linquent party,  from  which,  if  attached  thereon, 


CIRCUIT  COURTS  IN  EQUITY  CASES.  437 


80 


he  shall  not  be  discharged,  unless  upon  a  full  ^''^^ 
compliance  with  the  decree  and  the  payment  of 
all  costs,  or  upon  a  special  order  of  the  court  or 
of  a  judge  thereof,  upon  motion  and  affidavit, 
enlarging  the  time  for  the  performance  thereof. 
If  the  delinquent  party  cannot  be  found,  a  writ  JJ'^^j^^j. 
of  sequestration  shall  issue  against  his  estate  up-  [^^J^^l^^' 
on  the  return  of  nonest  inventus,  to  compel  obe-  sues 
dience  to  the  decree. 

Executions  can  not  by  law  be  served  in  any  other  district 
than  that  in  which  the  judgment  was  rendered,  except  in  two 
cases :  one  in  favor  of  the  United  States,  in  any  part  of  the 
United  States,  Act,  1797,  ch.  20,  §  6  ;  and  the  other  in  favor  of 
private  persons  in  another  district  of  the  same  State.  Act 
1826,  ch.  124.      Tolland  vs.  Spragne,  12  Pet.  300. 

The  marshal  is  not  required  by  law  to  receive  any  thing  in 
discharge  of  an  execution,  but  the  gold  and  silver  coin  of  the 
United  States.  Grijin  vs.  Thompson,  2  How.  244.  McFar- 
land  vs.  Gwin,  3  How.  717.     Gwin  vs.  Bteedlove,  2  How.  29. 


Rule  IX. 
When  any  decree  or  order  is  for  the  delivery    rule  9. 
of  possession,  upon  proof  made  by  affidavit  of  a  writ  of 
demand  and  refusal  to  obey  the  decree  or  order,  when  par- 
the  party  prosecuting  the  same  shall  be  entitled  iL^e^^ 
to  a  writ  of  assistance  from  the  clerk  of  the  court. 

Rule  X. 

Every  person,  not  being  a  party  in  any  cause,    ^^l^  ^^' 

who  has  obtained  an  order,  or  in  whose  favor  an  JVrsons, 

not  par- 
order  shall  have  been  made,  shall  be  enabled  to  tics,  may 


438 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  10 

have  or- 
ders en- 
forced by 
same  pro- 
cess as  if 
a  party. 

And  shall 
be  liable 
to  like  pro- 
cess, as  if 
a  party. 


enforce  obedience  to  such  order  by  the  same  pro- 
cess, as  if  he  were  a  party  to  the  cause ;  and 
every  person  not  being  a  party  in  any  cause, 
against  whom  obedience  to  any  order  of  the  court 
may  be  enforced,  shall  be  liable  to  the  same  pro- 
cess for  enforcing  obedience  to  such  order,  as  if 
he  were  a  party  in  the  cause. 


RULE  11. 

Sabpoana 
not  to  is- 
sue until 
bill  filed. 


SERVICE  OF  PROCESS. 
Rule  XL 

No  process  of  subpoena  shall  issue  from  the 
clerk's  office  in  any  suit  in  equity,  until  the  bill 
is  filed  in  the  office. 

Independently  of  positive  legislation,  no  process,  either  from 
the  circuit  or  district  court,  can  be  sent  into  or  served  in  an- 
other district.  Ex  parte  Graham,  3  Wash.,  456  ;  Tolland,  vs. 
Sprague,  12  Pet.,  300. 

The  only  case  in  which  civil  (mesne)  process  can  run  into 
another  district  is  in  that  of  a  subpoena  for  witnesses?  provided 
the  witnesses  do  not  reside  more  than  one  hundred  miles  from 
where  the  court  is  holden.  Act  1793,  ch.  22,  §6.  In  regard 
to  final  process,  there  are  but  two  cases  in  which  writs  of  exe- 
cution can  be  served  in  another  district  than  that  in  which  the 
judgment  was  rendered  :  one  in  favor  of  private  persons  in 
another  district  in  the  same  state;  act  1826,  ch.  124;  and  the 
other  in  favor  of  the  United  States,  in  any  part  of  the  United 
States.     Act  1797,  ch.  20,  §  6. 


Rule  XII. 

RULE  12        Whenever  a  bill  is  filed,  the  clerk  shall  issue 
Sabpoana    the  proccss  of  subpocna  thereon,  as  of  course,  upon 


CIRCUIT  COURTS  IN  EQUITY  CASES.  439 


the  application  of  tlie  plaintilf,  which  shall  be    Rti^iz 
returnable  into  the  clerk's  office  the  next  rule  when  re- 

,  ,  .  p  turiiuble. 

day,  or  the  next  rule  day  but  one,  at  the  election  ot 
the  plaintiff,  occurring  after  twenty  days  from  the 
time  of  the  issuing  thereof     At  the  bottom  of  the  Momonm- 

'^  diim  at 

subpania  shall  be  placed  a  memorandum,  that  the  bnuom  of. 
defendant  is  to  enter  his  appearance  in  the  suit  in 
the  clerk's  office,  on  or  before  the  day,  at  which  the 
writ    is  returnable ;   otherwise,  the  bill  may  be 
taken  pro  confesso.     AVhere  there  are  more  than 
one  defendant,  a  writ  of  subprena  may,  at  the  when  for 
election  of  the  plaintiff,  be  sued  out  separately  feudaut 
for  each  defendant,  except  in  the  case  of  husband 
and  wife,  defendants,  or  a  joint  subpoena  against 
all  the  defendants. 


Rule  XIII. 
The  service  of  all  sabpa?nas  shall  be  by  a  de-    rule  13 
livery  of  a  copy  thereof  by  the  officer  serving  the  service  of 

•         1  subpoBiias. 

same,  to  the  defendant  personally,  or,  m  the  case  ho%v 
of  husband  and  wife,  to  the  husband  personally, 
or  by  leaving  a  copy  thereof  at  the  dwelling  house 
or  usual  place  of  abode  of  each  defendant,  with 
some  free  white  person,  who  is  a  member  or 
resident  in  the  family. 


made. 


The  court  will  not  order  service  of  a  subpoena  in  equity,  on 
ihe  defendant's  attoniey  at  law  to  be  a  good  service,  except  in 
cross  suits,  and  injunction  suits  to  stay  proceedings  at  law,  on 
the  ground  of  the  defendant's  residing  out  of  the  state.  Hitncr 
vs.  Sucl-lcij,  2  Wash.,  465 ;  Read  vs.  Consegua,  4  Wash.,  174  ; 
Echcrt  vs.  Bciucrt,  4  Wash.,  370 ;    Ward  vs.  Seahry,  4  Wash., 


440         RULES  OF  THE  FEDERAL  COURTS. 

■RULE  13.     426  ;    Ward  vs.  Seahring,  4  Wash.,  472  ;  Doc  vs.  Johnston,  2 
'~         McLean,  323. 

This  practice  is  in  strict  conformity  with  that  of  the  English 
chancery  court.  Ward  vs.  Seahry,  4  Wash.,  426  ;  citing  1 
New.,  65;  2  Mad.  Ch.,  327;  Mason  and  Gardiner,  4  Bro.  C. 
C,  378.  See  also  Anderson  vs.  Lewis,  3  Id.,  429  ;  Bond  vs. 
Duke  of  Newcastle,  3  Ibid,  386,  and  notes. 

And  in  some  cases,  where  injunctions  are  not  sought,  the 
court  have  permitted  service  upon  an  agent  or  factor  of  a  de- 
fendant abroad,  acting  in.  respect  to  the  property  in  dispute,  to 
be  good  service  upon  the  principal.  1  Bar.  Chan.  Prac,  53 ; 
1  Dan.  Ch.  Pr.,  268,  568 ;  citing  Hyde  vs.  Foster,  1  Dick,  102. 
In  general,  if  an  extraordinary  service  is  necessary,  the  safest 
course  is  for  the  plaintiff  to  apply  in  the  first  instance  to  the 
court,  by  motion,  supported  by  affidavit,  stating  the  circum- 
stances, for  an  order  that  the  particular  mode  of  service  re- 
quired may  be  good  service.     1  Dan.  Ch.  Pr.,  566. 

As  to  extraordinary  service,  see  1  Dan.  Ch.  Pr.,  261  to  270 
and  566  to  569 ;  how  made  on  prisoner,  Ano7i,  Mos.,  237 ; 
when  at  defendant's  last  place  of  residence,  Parker  vs.  Black- 
bourn,  2  Vern.,  369 ;  when  at  wife's  last  place  of  residence, 
PuUency  vs.  Shclton,  2  Ves.,  147 ;  when  may  be  sent  under 
cover,  Hunt  vs.  Lever  5  Ves.,  147. 

Courts  of  equity  have  sometimes  enforced  obedience  to  their 
process,  by  defendants  who  are  out  of  their  jurisdiction,  by 
restraining  the  assertion  of  their  legal  rights  in  a  manner  pre- 
judicial to  the  plaintiffs,  until  they  have  rendered  themselves 
amenable  to  the  jurisdiction.  1  Dan.  Ch.  Pr.,  263.  For  prac- 
tice in  such  cases,  see  1  Dan.  Ch.  Pr.,  263. 

Rule  XIV. 
auLB  14.       Whenever  any  subpcBna  shall  be  returned  not 
sub^na,   executed  as  to  any  defendant,  the  plaintiff  shall 
tones  quo-  ^^  entitled  to  another  subpcsna,  toties  quoties, 


CIRCUIT  COURTS  IN  EQUITY  CASES.  44 1 

against  such  defendant,  if  he   shall  require  it,    ri'le  14 
until  due  service  is  made. 

Rule  XV. 
The  service  of  all  process,  mesne  and  final,    R^'i^'s. 
shall  be  by  the  marshal  of  the  district,  or  his  de-  service  of 

process, 

puty,  or  by  some  other  person  specially  appointed  i>y  whom 

,  to  be 

by  the  court  for  that  purpose,  and  not  otherwise ;  made. 
in  the  latter  case,  the  person  serving  the  process  Proof  of 
shall  make  affidavit  thereof 


service. 


The  marshal  is  to  execute,  throughout  his  district,  all  lawful 
precepts  directed  to  him  and  issued  under  the  authority  of  the 
United  States.  Act  1789,  c/^  20,  §  27.  (1  Stat,  at  Large  87). 
He  performs  this  duty  under  the  guidance  of  the  law,  and  at 
his  peril ;  but  he  must  of  course  exercise  some  judgment  in 
the  performance.  Lije  and  Fire  Ins.  Co.  of  N.  Y.  vs.  Adams, 
9  Pet.  573. 

Attachments  for  the  non-attendance  of  witnesses  must  be 
served  by  the  marshal  of  the  court,  though  the  persons  may 
reside  in  a  distant  county.  United  States  vs.  Montgomery,  2 
Dall.  33. 

The  marshal  is  bound  to  serve  process  as  soon  as  he  reason- 
ably can,  and  is  liable  for  loss  aribing  from  his  neglect.  Ken- 
nedy vs.  Brent,  C  Cra.  187  ;  2  Cond.  345.  And  he  is  liable  for 
the  failure  of  his  deputy  to  serve  original  process ;  but  the 
measure  of  such  liability  is  the  extent  of  the  injury  received 
by  the  plaintiff,  produced  by  such  negligence.  United  States 
vs.  Moore's  Admrs.,  2  Mar.  Dec.  317.  Ex  parte  Iloyt,  13  Pet. 
279. 

He  may  be  ruled  to  return  process,  Oswald  vs.  State  oj"  New- 
York,  2  Dall.  415;  1  Cond.  6;  but  the  court  will  not  dictate 
what  return  he  shall  make  to  process  in  his  hands.  Wortman 
vs.  Conynghain,  1  Pet.  C.  C.  241. 


442 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  15. 


The  marshal  may  have  an  attachment  to  enforce  the  pay- 
ment of  his  fees  of  office,  against  suitors  in  the  court.  So 
a"-ainst  an  endorser  on  the  writ,  who  by  the  lex  loci  is  liable  to 
respond  the  costs.     Anon,  2  Gall.  101. 

It  is  a  contempt  of  court  to  serve  process  either  in  the  ac- 
tual or  constructive  presence  of  the  court.  Blight's  Exrs.,  vs. 
Fisher,  1  Pet.  C.  C.  41. 


RULE  16. 

Subpirna 
served, 
Clerk  to 
enter  tlie 
suit  as 
peudiug. 


Rule  XVL 

Upon  the  return  of  the  subpoena,  as  served  and 
executed  upon  any  defendant,  the  clerk  shall  en- 
ter the  suit  upon  his  docket  as  pending  in  the 
court,  and  shall  state  the  time  of  the  entry. 


RULE  17. 

Appear- 
ice  day 


ant,  when. 


APPEARANCE. 

Rule  XVII. 

The  appearance  day  of  the  defendant  shall  be 
the  rule  day,  to  which  the  subpoena  is  made  re- 
oTdeiend-  tumablc ;  provided,  he  has  been  served  with  the 
proce^s  twenty  days  before  that  day;  otherwise, 
his  appearance  day  shall  be  the  next  rule  day 
succeeding  the  rule  day,  when  the  process  is  re- 
turnable. 

The  appearance  of  the  defendant,  either  per- 
sonally or  by  his  solicitor,  shall  be  entered  in  the 
order  book  on  the  day  thereof  by  the  clerk. 

A  defendant  entered  his  appearance,  but  put  in  no  answer 
and  was  in  contempt.  An  attachment  with  proclamations  was 
issued  and  returned  non  est  inventus.  The  court  ordered  a 
commission  of  rebellion  to  issue,  returnable  immediate,  and  a 


Appear- 
ance, how 
eutered. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  443 

sequestration  was  ordered,  and  on  further  motion,  that  the  bill     un.K  n 
be  taken  as  confessed.     Boudinot  vs.  St/mmcs,  Wallace  139. 

Voluntary  aj)j)earance  is  a  waiver  of  ])rocess.  Knox  vs. 
Summers,  3  Cra.  496  ;  1  Cond.  307.  Grade  vs.  Palmer,  8 
Whea.  699  ;  5  Coud.  561.  Carrington's  Heirs  vs.  Brent  ct  al, 
1  McLean  174. 

Appearance  cures  defects  in  service  of  writs.  KiUrcdge  vs. 
Etnerson,  3  Leg.  Obs.  166.     S.  C,  7  Law.  Rep.  312. 

BILLS  TAKEN  PRO  COKFESSO. 
Rule  XVIIL 
It  shall  be  the  duty  of  the  defendant,  unless    kuleis. 
the  time  shall  be  otherwise  enlarged,  for  cause   neLnKhmt 

vvlieu  to 

shown,  by  a  judge  of  the  court  upon  motion  for  f''"  I'l' a- 

demurrer 

that  purpose,  to  file  his  plea,  demurrer,  or  answer  01  uuswer. 
to  the  bill  in  the  clerk's  office,  on  the  rule  day 
next  succeeding  that  of  entering  his  appearance: 
in  default  thereof,  the  plaintiff  may,  at  his  elec-  in  default 
tion,  enter  an  order  (as  01  course)  in  the  order  i.iiimay 
book,  that  the  bill  be  taken  pro  confesso;  and  procmifasso 
thereupon  the  cause  shall  be  proceeded  in  ex 
parte,  and  the  matter  of  the  bill  may  be  decreed  Andde- 
by  the  court  at  the  next  ensuing  term  thereof  ariLu  *"" 
accordingly,  if  the  same  can  be  done  without  an 
answer,  and  is  proper  to  be  decreed ;  or  the  plain-  orpiaintii! 
tiff,  if  he  requires  any  discovery  or  answer  to  !',?L'ta7h- 
enable  him  to  obtain  a  proper  decree,  shall  be  ".anpcTau 
entitled  to  process  of  attachment  against  the  de-  """''*''■• 
fendant,  to  compel  an  answer;  and  the  defendant  And  de- 
shall  not,  when  arrested  upon  such  process,  be  IZyXe 
discharged  therefrom,  unless,  upon  filing  his  an-  ''"^'***'  " 


444 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  la 


And  re- 
tained till 
makes 
answer. 


swer,  or  otherwise  complying  with  such  order, 
as  the  court  or  a  judge  thereof  may  direct,  as  to 
pleading  to,  or  fully  answering  the  bill,  within  a 
period  to  be  fixed  by  the  court  or  judge,  and  un- 
dertaking to  speed  the  cause. 


RULE  19. 

Decree 

pro  covfesso 
absolute, 
except 
when. 


Set  aside 
only  on 
payment 
of  costs. 


And  npon 
terms. 


Rule  XIX. 

When  the  bill  is  taken  pro  confesso,  the  court 
may  proceed  to  a  decree  at  the  next  ensuing  term 
thereof,  and  such  decree  rendered  shall  be  deemed 
absolute,  unless  the  court  shall,  at  the  same  term, 
set  aside  the  same,  or  enlarge  the  time  for  filing 
the  answer,  upon  cause  shown  upon  motion  and 
affidavit  of  the  defendant.  And  no  such  motion 
shall  be  granted,  unless  upon  the  payment  of  the 
costs  of  the  plaintiff  in  the  suit  up  to  that  time, 
or  such  part  thereof  as  the  court  shall  deem  rea- 
sonable, and  unless  the  defendant  shall  under- 
take to  file  his  answer  within  such  time  as  the 
court  shall  direct,  and  submit  to  such  other  terms 
as  the  court  shall  direct,  for  the  purpose  of  speed- 
ing the  cause. 

On  a  default  being  opened  it  is  optional  with  the  plaintiff  to 
try  or  continue  the  cause.  But  in  no  case  can  a  defendant  take 
advantage  of  his  own  negligence,  by  procuring  a  continuance 
on  the  ground  that  the  issue  was  not  made  up.  Kimball  vs. 
Stewart,  1  McLean  332. 

A  decree  pro  confesso,  when  irregularly  entered,  as  a  matter 
of  course,  will  be  set  aside  on  motion.  Fclloivs  vs.  Hall,  3 
McLean  281. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  445 

FRAME  OF  BILLS. 
Rule  XX. 
Every  bill,  in  the  introductory  part  thereof,  shall    rdle  20 
contain  the  names,  places  of  abode,  and  citizen-  biu.  intro 

ductory 

ship,  of  all  the  parties,  plaintiffs  and  defendants,  pan  what 

to  contain, 

by  and  against  whom  the  bill  is  brought.     The  andibrm 
form,  in  substance  shall  be  as  follows:  "To  the 
judges  of  the  circuit  court  of  the  United  States 
for  the  district  of .     A.  B.  of ,  and  a  ci- 
tizen of  the  state  of ,  brings  this,  his  bill, 

against  C.  D.,  of ,  and  a  citizen  of  the  state 

of ,  and  E.  F.,  of ,  and  a  citizen  of  the 

of :     And  thereupon  your  orator  complains 

and  says,  that,  &c." 

Rule  XXL 
The  plaintiff,  in  his  bill  shall  be  at  liberty  to    rule  21. 
omit,  at  his  option,  the  part  which  is  usually  plaintiff 
called  the  common  confederacy  clause  of  the  bill,  common 
averring  a  confederacy  between  the  defendants  ly clause: 
to  injure  or  defraud  the  plaintiff;  also  what  is 
commonly  called  the  charging  part  of  the  bill,  audcharg- 
settmg  forth  the  matters  or  excuses,  which  the 
defendant  is  supposed  to  intend  to  set  up  by  way 
of  defence  to  the  bill;  also,  what  is  commonly 
called  the  jurisdiction  clause  of  the  bill,  that  the  and  juns- 
acts  complained  of  are  contrary  to  equity,  and  ckuse" 
that  tli^  defendant  is  without  any  remedy  at  law; 
and  the  bill  shall  not  be   demurrable   therefor. 


\ 


446  RULES  OF  THE  FEDERAL  COURTS. 

RULE  21  ^j^j  ^j^g  plaintiff  may,  in  the  narrative  or  stating 
auYavoid  P^^*^  ^^  ^^^^  ^^^^'  state  and  avoid,  by  counter  aver- 
matters  of  nients,  at  his  option,  any  matter  or  thing  which 
he  supposes  will  be  insisted  upon  by  the  defend- 
ant, by  way  of  defence  or  excuse,  to  the  case 
hW\  "f  made  by  the  plaintiff  for  relief.  The  prayer  of 
relief  to     the  bill  shall  ask  the  special  relief,  to  which  the 

ask  for. 

plaintiff  supposes  himself  entitled,  and  also  shall 
contain  a  prayer  for  general  relief;  and  if  an 
injunction,  or  a  writ  of  ne  exeat  regno,  or  any 
other  special  order  pending  the  suit,  is  required, 
it  shall  also  be  specially  asked  for. 

Every  bill  must  contain  sufficient  matter  in  itself,  per  se,  to 
maintain  the  case  of  the  plaintiff.  Harrison  vs.  Nixon,  9  Pet., 
483. 

Where  a  specific  relief  is  asked  for,  even  though  there  be  a 
prayer  for  general  relief,  the  circuit  court  can  not  grant  a  re- 
lief which  is  inconsistent  with,  or  entirely  different  from  that 
which  is  prayed.      Wilson  vs.  Graliam.,  4  Wash.  53. 

Under  the  prayer  for  general  relief,  the  court  will  grant  such 
relief  only  as  the  case  stated  in  the  bill  and  sustained  by  the 
proofs  will  justify.  English  vs.  Foxall,  2  Pet.,  595  ;  Walden 
vs.  Bodlexj,  14  Pet.,  156  ;  Hobson  vs.  McArtJmr,  16  Pet.,  182. 
But  any  relief  may  be  granted  not  inconsistent  with  the  bill  or 
specific  prayers.     Boone  vs.  Chiles,  10  Pet.,  177. 

The  party  may  frame  his  bill  with  a  double  aspect,  so  that 
if  the  court  decide  against  him  upon  one  view  of  the  case,  it 
may  afford  him  relief  in  another.  Hohson  vs.  McArthur,  16 
Pet.,  195, 

If  an  answer  neither  admits  nor  denies  the  allegations  of  a 
bill,  they  must  be  proved  on  the  final  hearing ;  but  on  a  ques- 
tion for  a  dissolution  of  any  injunction,  they  are  to  betaken  as 
true.     Young  vs.  Grundy,  6  Cra.,  51  ;  2  Cond.,  300. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  447 

In  order  to  support  a  motion  for  an  injunction,  the  bill  should     rule  21. 
set  forth  a  case  of  probable  right,  and  a  probable  danger  that 
the  right  would  be  defeated,  without  the  special  interposition 
of  the  court.     State  of  Georgia  vs.  Brailsford,  2  Dall.,  405  ;   1 
Cond.,  3. 

The  bill  must  show  how  the  plaintiff  will  be  wronged,  that 
the  court  may  judge  whether  the  wrong  complained  of  entitles 
him  to  an  injunction.  Spooner  vs.  McConnell  et.  al.,  1  McLean, 
337,  383. 

Rule  XXII. 
If  any  persons,  other  than  those  named  as  de-    rule^>2. 
fendants  in  the  bill,  shall  appear  to  be  necessary  wam  of 

proper 

or  proper  parties  thereto,  the  bill  shall  aver  the  parties, 

1  .•  1  1  averment 

reason,  why  they  are  not  made  parties,  by  show-  ofbuias 
ing  them  to  be  without  the  jurisdiction  of  the 
court,  or  that  they  can  not  be  joined  without 
ousting  the  jurisdiction  of  the  court  as  to  the  other 
parties.    And  as  to  persons,  who  are  without  the  parties 
jurisdiction,  and  may  properly  be  made  parties,  r'sdrcVlo.i, 
the  bill  may  pray,  that  process  may  issue  to  make  Seni- 
them   parties  to  the  bill,   if  they  should  come  "'S- 
within  the  jurisdiction. 

Rule  XXIII. 
The  prayer  for  process  of  subpoena  in  the  bill    rule  23. 
shall  contain  the  names  of  all  the  defendants  subp.ma 
named  in  the  introductory  part  of  the  bill,  and  if  the  nanua 
any  of  them  arc  known  to  be  infants  under  age,  defend-'" 
or  otherwise  under  guardianship,  shall  state  the  state",  if 
fact,  so  that  the  court  may  take  order  thereon  as  miaors. 
justice  may  require,  upon  the  return  of  the  pro- 


448  RULES  OF  THE  FEDERAL  COURTS. 


RULE  23.  cess.  If  an  injunction,  or  a  writ  of  ne  exeat 
Need  not  legno,  or  any  other  special  order  pending  the  suit, 
prayer" for  is  askcd  for  in  thc  prayer  for  relief,  that  shall  be 
Sn  sufficient  without  repeating  the  same  in  the 
prayer  for  process. 

Rule  XXIV. 
ULE  24.        Every  bill  shall  contain  the  signature  of  coun- 
Biii~be    sel  annexed  to  it,  which  shall  be  considered  as 
cSfei  ^   an  affirmation  on  his  part,  that  upon  the  instruc- 
tions given  to  him  and  the  case  laid  before  him, 
there  is  good  ground  for  the  suit,  in  the  manner 
in  which  it  is  framed. 

If  a  bill  is  not  signed  by  counsel,  it  is  demurrable.  But  if 
the  bill  is  endorsed  by  counsel,  it  is  a  sufficient  signing  within 
t  le  rule.     Dwight  vs.  Humphreys  et  al,  3  McLean  104. 

Rule  XXV.      * 
RULE  25.        In  order  to  prevent  unnecessary  costs  and  ex- 
Cos^Toa     penses,  and  to  promote  brevity,  succinctness,  and 
a.?swer      dircctucss  iu  the  allegations  of  bills  and  answers, 
reg'Iiated.  the  rcgular  taxable  costs  for  every  bill  and  an- 
swer shall  in  no  case  exceed  the  sum,  which  is 
allowed  in  the  state  court  of  chancery  in  the  dis- 
trict, if  any  there  be ;  but  if  there  be  none,  then 
it  shall  not  exceed  the  sum  of  three  dollars  for 
every  bill  or  answer. 

As  to  thc  efi'ect  and  meaning  of  this  rule,  the  following  de- 
cision has  been  made : 


CIRCUIT  COURTS  IN  EQUITY  CASES. 


449 


United  States  Circuit  Court — Northern  Uistrict  of  New-     i^^le  25. 
York. — Before  Hon.  Mr.  Justice  Nelson.     June  30,  1851. 
IN  EQUITY. 

Wade  vs.  Matthews.  This  was  an  appeal  from  the  taxation 
of  costs  by  the  clerk  of  this  court.  The  plaintiff  had  charged 
by  the  folio  for  the  draft  and  copies  of  his  bill  of  complaint, 
according  to  the  Rcviiicd  Statutes  of  New-York,  as  they  ex- 
isted in  1842,  when  the  equity  rules  were  adopted.  The  de- 
fendant claimed  that  the  only  charge  which  could  be  made  was 
either  $3  under  the  25th  equity  rule,  or  the  amount  now  allow- 
able under  the  code.  Judge  Nelson  held  that  the  true  rule 
was  to  tax  under  the  New  York  chancery  fee  bill,  as  it  existed 
in  1842. 

See  also  "Costs"  ante  p.  277. 


SCANDAL  AND  IMPERTINENCE  IN  BILLS. 
Rule  XXVI. 

Every  bill  shall  be  expressed  in  as  brief  and 
succinct  terms  as  it  reasonably  can  be,  and  shall 
contain  no  unnecessary  recitals  of  deeds,  docu- 
ments, contracts  or  other  instruments,  in  hcec 
verba,  or  any  other  impertinent  matter,  or  any 
scandalous  matter  not  relevant  to  the  suit.  If  it 
does,  it  may  on  exceptions  be  referred  to  a  mas- 
ter by  any  judge  of  the  court  for  impertinence, 
or  scandal,  and  if  so  found  by  him,  the  matter 
shall  be  expunged  at  the  expense  of  the  plaintiff, 
and  h(^  shall  pay  to  the  defendant  all  his  costs  in 
the  suit  up  to  that  time,  unless  the  court  or  a 
judge  thereof  shall  otherwise  order.  If  the  mas- 
ter shall  report,  that  the  bill  is  not  scandalous  or 

29 


RULE  26. 

Bill  to  be 
brief;  con- 
tain no  re- 
citals; nor 
scandal  or 
imperti- 
nence. 

If  it  does, 
the  same 
may  be 
expunged 
at  costs  of 
the  plain- 
tiff. 


Not  scan- 
dalous &c, 
defendant 
to  ^ay 
costs. 


450  RULES  OF  THE  FEDERAL  COURTS. 

RULE  C6.    impertinent,  the  plaintiff  shall  be  entitled  to  all 
costs  occasioned  by  the  reference. 

There  is  no  general  rule  as  to  what  constitutes  multifarious- 
ness ;  each  case  must  depend  upon  its  own  circumstances ;  and 
much  must  necessarily  be  left  to  the  sound  disci-etion  of  the 
court.  The  doctrine  laid  down  by  Lord  Campbell  in  Camp- 
hell  vs.  Mackay,  1  Mylne  &  Craig,  603,  affirmed.  Gaines  vs. 
Chew,  2  How.  619.  Oliver  vs.  Piatt,  3  How.  333.  McLean 
vs.  Banh  of  Lafayette,  3  McLean,  415. 

The  objection  of  multifariousness  must  be  taken  advantage 
of  by  plea,  demurrer  or  answer,  and  can  not  be  insisted  upon 
by  the  defendant  at  the  hearing;  Oliver  vs.  Piatt,  3  How.  333, 
411 ;  and  in  a  later  case,  it  was  held  that  the  objection  can 
only  be  taken  advantage  of  by  demurrer  or  exception  to  the 
pleading,  and  must  be  made  hcfore  answer,  and  can  be  tested 
only  by  the  structure  of  the  bill  itself.  Nelson  vs.  Hill,  5  How. 
127,  132. 

The  court  may  take  notice  of  it,  at  any  time,  sua  sponte,  but 
this  will  not  be  done  at  so  late  a  period  as  the  hearing,  unless 
it  is  essential  to  the  due  administration  of  justice.  A  fortiori, 
an  appellate  couit  would  scarcely  entertain  the  objection,  if  it 
was  not  forced  upon  it  by  a  moral  necessity.  Nelson  vs.  Hill, 
5  How.  127,  132.     Oliver  vs.  Piatt,  3  How.  333,  412. 

A  bill  is  not  multifarious  because  it  embraces  the  distinct 
claims  of  several  parties,  if  the  interests  of  all  are  so  mingled 
in  a  series  of  complicated  transactions,  that  entire  justice  could 
not  be  done  without  such  an  union,  or  if  without  being  so 
joined  the  bill  would  have  been  open  to  the  objection  that  all 
the  proper  parties  were  not  before  the  court.  Oliver  vs.  Piatt, 
3  How.  333,  412. 

See  also  as  to  multifariousness,  Story's  Eq.  Plead.,  §  530  to 
540,  and  authorities  there  cited.  Atty.  Gen.  vs.  Cradock,  3 
Mylne  &  Craig,  85.  Whaley  vs.  Dawson,  2  Scho.  &  Lef.  370. 
Ward  vs.  Cooke,  5  Madd.  80. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  451 


Rule  XXVII. 

No  order  shall  be  made  by  any  judge  for  refer-  R'l^??. 

ring  any  bill,  answer,  or  pleading,  or  other  mat-  J?^^;j«p-^ 

ter,  or  proceeding  depending  before  the  court  for  Bcandai 

scandal  or  impertinence,   unless  exceptions  arc  iu  writing 

*■  ,  audsigned 

taken  in  writing  and  signed  by  counsel,  describ-  by  counsel 
ing  the  particular  passages,  which  are  considered 
to  be  scandalous  or  impertinent;  nor  unless  the  '^ll^^^l'"'^ 
exceptions  shall  be  filed  on  or  before  the  next  rule  ^Ji^j.'^^J^. 
day,  after  the  process  on  the  bill  shall  be  return-  J^'fJji'J"' 
able,  or  after  the  answer  or  pleading  is  filed,  gfgd"''''^' 
And  such  order,  when  obtained,  shall  be  consi- 
dered as  abandoned^  unless  the  party  obtaining 
the  order  shall,  without  any  unnecessary  delay, 
procure  the  master  to  examine  and  report  for  the  such  or- 
same  on  or  before  the  next  succeeding  rule  day,  deemed  a- 
or  the  master  shall  certify,  that  further  time  is 
necessary  for  him  to  complete  the  examination. 

On  exceptions  to  an  answer  for  impertinence  antl  scantlal, 
courts  of  equity  give  the  answer  a  liberal  consideration,  hav- 
ing regard  to  the  nature  of  the  case  as  made  by  the  bill. 
Grisu'old  vs.  IliU,  1  Paine,  390. 

AMENDMENTS  OF  BILLS. 

Rule  XXVIII. 
The  plaintiif  shall  be  at  liberty  as  a  matter  of  rule  2s. 
course,  and  without  payment  of  costs,  to  amend  Biii~hen 
his  bill  iu  any  matters  whatsoever,  before   any  "Inended 
copy  has  been  taken  out  of  the  clerk's  olfice,  and  aluu'""''' 
in  any  small  matters  afterwards,  such  as  filling  J^icts'^^ 


452 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  23. 


When  on 
payment 
of  costs, 
and  on 
serving 
coj)y  of 
amend- 
ments. 


When  to 
furnish  a 
copy  of 
the  whole 
bill. 


blanks,  correcting  errors  of  dates,  misnomer  of 
parties,  misdescription  of  premises,  clerical  er- 
rors, and  generally  in  matters  of  form.  But 
if  he  amend  in  a  material  point  (as  he  may 
do  of  course,)  after  a  copy  has  been  so  taken, 
before  any  answer  or  plea,  or  demurrer  to  the  bill, 
he  shall  pay  the  defendant  the  costs  occasioned 
thereby,  and  shall  without  delay,  furnish  him  a 
fair  copy  thereof,  free  of  expense,  with  suitable 
references  to  the  places,  where  the  same  are  to 
be  inserted.  And  if  the  amendments  are  nume- 
rous, he  shall  furnish  in  like  manner  to  the  de- 
fendant, a  copy  of  the  wholes  bill  as  amended,  and 
if  there  be  more  than  one  defendant,  a  copy  shall 
be  furnished  to  each  defendant  affected  thereby. 

For  statutory  enactment  and  further  references  respect- 
ing amendments,  see  "Poivers  in  Common,"  title  Amendments. 

An  amendment  of  a  bill  upon  which  an  injunction  has  been 
granted,  before  answer  filed,  particularly  if  filed  within  a  short 
time  after  filing  the  original  bill,  will  not  affect  the  injunction 
granted  on  the  original  bill.     Read  vs.  Consequa,  4  Wash.  175. 

The  amendment  should  be  by  a  separate  bill  and  not  by  in- 
terlining the  orignal  bill.  The  amended  bill  should  call  on 
the  original  defendants  to  answer  the  new  matter,  or  the  new 
parties,  if  any,  to  answer  both.  Pierce  vs.  West's  ExWs.,  3 
Wash.  354. 

An  amendment  of  an  original  bill,  asserting  a  new  title,  is 
considered  a  new  bill.     Hohnesvs.  TrouVs  Heirs,  1  McLean,  1. 

Where  a  bill  is  amended,  process  need  not  be  issued  against 
the  defendants,  who  are  in  court,  as  they  have  notice  of  the 
amendment,  and  are  subject  to  the  orders  of  the  court.  Long- 
worth  vs.  Taylor,  1  McLean,  514. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  453 


RULE  28. 


Amendments,  which  change  the  character  of  the  bill  or  an- 
swer, so  as  to  make  substantially  a  new  case,  should  rarely  if 
ever  be  admitted,  after  the  cause  has  been  set  for  hearing; 
much  less  after  it  has  been  heard,  TT7//J('w  vs.  Bodlcij,  14  Pet. 
156. 


Rule  XXIX. 

After  an  answer,  or  plea,  or  demurrer  is  put  in, 
and  before  replication,  the  defendant  may,  upon 
motion   or  petition,  without   notice,   obtain   an  f^^'fand 

'■  beiore  re- 

order  from  any  judge  of  the  court,  to  amend  his  f''^^!J!^' 

bill  on  or  before  the  next  succeedin«^  rule  day,  upon  "'"v  he 
payment  of  costs  or  Avithout  payment  of  costs,  as 

the  court  or  a  judge  thereof  may  in  his  discretion  After  re 


RULE  29. 
After  an- 


direct.     But  after  replication  filed,  the  plaintiff  liir ' '"' 
shall  not    be  permitted  to  withdraw  it  and  to  ody  ou 
amend  his  bill,  except  upon  a  special  order  of  a  "n<Vi"o° 
judge  of  the  court,  upon  motion  or  petition,  after  ouu'rms. 
due  notice  to  the  other  party,  and  upon  proof  by 
affidavit,  that  the  same  is  not  made  for  the  pur- 
pose of  vexation  or  delay,  or  that  the  matter  of 
the  proposed  amendment  is  material,  and  could 
not  with  reasonable  diligence  have  been  sooner 
introduced  into  the  bill,  and  upon  the  plaintifi's 
submitting  to  such  other  terms  as  may  be  im- 
posed by  the  judge  for  speeding  the  cause. 

Rule  XXX. 

If  the  plaintiff,  so  obtaining  any  order  to  amend  i^i^le  30. 

his  bill  after  answer,  or  plea,  or  demurrer,  or  af-  order  to 

ter  replication,  shall  not  file  his  amendments  or  %Jhea  ' 


454         RULES  OF  THE  FEDERAL  COURTS. 


RULE  30. 


amended  bill  as  the  case  may  require,  in  the 
deemed      clcrk's  officc,  on  or  before  the  next  succeeding 

abaii-  - 

doued.  rule  day,  he  shall  be  considered  to  have  aban- 
doned the  same,  and  the  cause  shall  proceed,  as 
if  no  application  for  any  amendment  had  been 
made.    . 

DEMURRERS  AND  PLEAS. 
Rule  XXXL 
RULE  31.        ]vj-Q  demurrer  or  plea  shall  be  allowed  to  be 
Demurrer  filed  to  auy  bill,  uuless  upon  a  certificate  of  coun- 

orpleacau  ,     ,  .      .  n  />  i     i  • 

not  be       sel,  that  in  his  opmion  it  is  well  founded  m  point 
ceptupon   of  law,  aud  supported  by  the   affidavit  of  the 

certificate  ...  .  i   r        i    i  i 

of  counsel,  defendant,  that  it  is  not  interposed  for  delay ;  and 
if  a  plea,  that  it  is  true  in  point  of  fact. 

A  plea  is  a  special  answer  to  the  bill,  setting  forth  the  facts 
sufficient  to  delay,  bar,  or  dismiss  the  suit,  and  need  not  cover 
any  other  parts  of  the  bill  than  such  as  concern  the  particular 
subject  of  the  bar.  If  the  plea  be  to  the  whole  bill,  it  must 
cover  the  whole  ;  if  the  plea  be  only  to  a  part  of  the  bill,  the 
rest  ought  to  be  answered,  or  it  will  be  regarded  by  the  court 
as  true. 

"When  the  plea  contains  in  itself  a  full  defence  to  the  bill,  an 
answer  is  unnecessary  ;  and  the  plaintiff  may  argue  the  plea  on 
its  merits,  or  reply  to  it,  as  he  thinks  proper.  Sims  vs.  Lyle, 
4  Wash.  301,  303-4. 

A  plea  in  bar  to  a  bill  in  equity,  denying  only  a  part  of  the 
material  facts  stated  in  the  bill,  is  not  good.  A  mere  denial  of 
facts  is  proper  for  answer,  but  not  a  plea.  Milligan  vs.  Mil- 
ledge  et.  ux.,  3  Cra.  220  ;   1  Cond.  503. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  455 

Rule  XXX IT. 
The  defendant  may,  at  any  time  before  the  bill    "^'l;^^^ 
is  taken  for  confessed,   or  afterwards  with  the  i>'^f'n'iant 

'  may  plead 

leave  of  the  court,  demur  or  plead  to  the  whole  f""  ''•^"i"' 

'  ■•■  to  bill,  in 

bill,  or  to  part  of  it,  and  he  may  demur  to  part,  ^^^'"'"^  y 
plead  to  part,  and  answer  as  to  the  residue ;  but  ^'^y  ^^' 
in  every  case,  in  which  the  bill  specially  charges 
fraud  or  combination,  a  plea  to  such  part  must  be  ^^^^^  ^^ 
accompanied  with  an  answer  fortifying  the  plea, 
and  explicitly  denying  the  fraud  and  combination, 
and  the  facts  on  which  the  charge  is  founded. 


liave  an- 
swer with 
it. 


'to^ 


It  is  an  established  and  universal  rule  of  pleading  in  chan- 
cery, that  a  defendant  may  meet  a  complainant's  bill,  by  seve- 
ral modes  of  defence.  He  may  demur,  answer  and  plead  to 
different  parts  of  the  bill;  so  that  if  a  bill  for  discovery  contain 
proper  matter  fur  the  one,  and  not  for  the  other,  the  defendant 
should  answer  the  proper  and  demur  to  the  improper  matter ; 
and  if  he  demurs  to  the  whole  bill,  the  demurrer  must  be  over- 
ruled.    Livingston  vs.  Story,  9  Pet.  632. 

It  is  a  general  rule,  that  a  plea  ought  not  to  contain  more 
defences  than  one.  Various  facts  can  never  be  pleaded  in  one 
plea ;  unless  they  are  all  conducive  to  the  single  point  on  which 
the  defendant  means  to  rest  his  defence.  State  Rhode  Island 
vs.  State  Massachusetts,  14  Pet.  210. 

Inordinary  cases,  between  individuals,  the  court  of  chancery 
has  always  exercised  an  equitable  discretion  in  relation  to  its 
rules  of  pleading,  whenever  it  has  been  found  necessary  to  do 
so  for  the  purposes  of  justice.  In  a  case,  in  which  two  sove- 
reign states  are  concerned,  the  most  liberal  principles  of  prac- 
tice and  pleading  are  adopted.     Iljid. 

Wlicii  a  bill  charges  cii'cumstances  calculated  to  avoid  the 
anticipated  bar  of  the  defendant,  the  plea  should  be  supported 
by  an  answer ;  for  then  it  is  proper,  not  only   that  the  plea 


456  RULES  OF  THE  FEDERAL  COURTS. 

RULE  32.  should  contain  all  necessary  averments  to  remove  those  cir- 
cumstanccs  out  of  its  way,  l)ut  the  defendant  must  support  his 
plea  by  an  answer  also  denying  the  same  circumstances.  The 
reasons  assigned  in  the  books  for  this  necessity  of  supporting 
a  pica  by  an  answer  is,  that  otherwise  the  plaintiff  would  lose 
the  opportunity  of  excepting,  and  thus  drawing  from  the  de- 
fendant some  confession,  which  might  destroy  the  bar  set  up 
by  the  plea.     Ferguson  vs.  O'Harra,  1  Pet.  C.  C.  493,  494. 

Rule  XXXIIL 
RULE  33.  The  plaintiff  may  set  down  the  demurrer  or 
riaimiff  plea  to  be  argued,  or  he  may  take  issue  on  the 
pieaS"-  plea.  If,  upon  an  issue,  the  facts  stated  in  the 
murrer.  ^^ea.  be  determined  for  the  defendant,  they  shall 
taiifed.  ef-  avail  him,  as  far  as  in  law  and  equity  they  ought 

feet  of.  •!   1   • 

to  avail  mm. 

If  a  plea  be  set  down  for  argument  by  the  complainant, 
without  replying  to  it,  the  matter  contained  in  it  must  be  re- 
garded as  true.     Gallagher's  Exrs.  vs.  Roberts,  1  Wash.  320. 

It  is  an  established  rule  on  demurrers,  that  although  the 
pleading  demurred  to  may  be  defective,  the  court  will  render 
judgment  against  the  party  whose  pleading  was  first  substan- 
tially defective.  United  States  vs.  Arthur,  5  Cra.  257.  Sprigg 
vs.  Ba7iJc  oj"  Mount  Pleasant,  10  Pet.  257.  Gormon  vs.  Lexox's 
Exrs.,  15  Pet.  115. 

But  the  fault  must  be  one  that  is  bad  on  general  demurrer, 
and  one  not  cured  by  a  verdict,  and  one  not  discovered  by  the 
court  and  desired  to  be  amended  so  as  to  present  the  merits 
properly.     Jackson  vs.  Rundlet,  1  Wood  &  Min.  381. 

A  plea  may  be  good  in  part,  and  not  so  in  the  whole ;  and 
the  court  will  allow  it  as  to  so  much  of  the  bill  as  it  is  properly 
applicable  to,  unless  it  has  the  vice  of  duplicity  in  it.  Kirk- 
patrickrVQ.  White  ct  al,  4  Wash.  595. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  457 


Tho  party  who  liiis  put  in  a  plea,  wliitli  is  the  subject  of  dis-      Ull^^- 
cussion,  has  a  right  to  open  and  conclude  the  argument.    Rhode 
Island  vs.  MassacJiusetts,  14  Pet.  210. 


.F  ai. 


Rule  XXXIV. 
•  If,  upon  the  hearing,  any  demurrer  or  plea  is    ^^^_ 
overruled,  the  plaintiff  shall  be  entitled  to  his  DcM,uri.r 

'  -i  or  pliM 

costs  in  the  cause  up  to  that  period,  unless  the  ..yerr..i..i 

•••  [)laliillti  tn 

court  shall  he  satisfied,  that  the  defendant  had  bavcc...st.s 

except 

good  ground  in  point  of  law  or  fact  to  interpose  wheu. 
the  same,  and  it  was  not  interposed  vexatiously 
or  for  delay.     And  upon  the  overruling  of  any  f;;;',;|;;-  ,„ 
plea  or  demurrer,  the  defendant  shall  he  assigned  J"„^^.;:.';'" 
to  answer   the   hill,  or  so   much    thereof  as  is  *'"'*^- 
covered  by  the  plea  or  demurrer,  the  next  suc- 
ceeding rule  day,   or  at  such  other  period,   as, 
consistently  with  justice  and  the  rights  of  the 
defendant,  the  same  can,  in  the  judgment  of  the 
court,  be  reasonably  done ;  in  default  whereof,  i„  d.fanit 
the  bill  shall  be  taken  against  him,  pro  confesso,  p,'-,,  c<ii-'° 
and  the  matter  thereof  proceeded  in  and  decreed 
accordingly. 

Where  fraud  is  alleged  in  a  bill,  and  relief  is  prayed  against 
a  judgment  and  a  judicial  sale  of  properly,  a  demurrer  to  the 
bill  that  relief  can  be  had  at  law  is  n(jt  sustainable.  SJ(cUo7i 
vs.  T#'«,  G  IIow.  163. 

A  plea  set  forth  various  agreements,  amounting  to  an  accord 
and  compromise  of  the  disputed  question,  and  also  the  occupa- 
tion of  the  country,  and  exercise  over  tlio  same  of  jurisdisction 
for  more  than  one  hundred  years.  Plea  held  double,  and  there- 
fore defective.     Rhode  Island  vs.  Massachusetts,  14  Pet.  210. 


458  RULES  OF  THE  FEDERAL  COURTS. 

RULE  3^1.  If  any  part  of  a  bill  in  chancery  is  good,  a  demurrer  to  the 
whole  can  not  be  sustained.     Livingston  vs.  Story,  9  Pet.  G32. 

See  Sims  vs.  Lyle,  4  Wash.  303. 

By  the  terms  of  this  rule  no  service  of  any  copy  of  an  inter- 
locutory decree,  taking  the  bill  pro  confesso,  is  necessary  be- 
fore the  final  decree ;  and  therefore  it  can  not  be  insisted  on 
as  a  matter  of  right,  or  furnish  a  proper  ground  for  a  bill  of 
review.     Banh  of  United  States  vs.  Wliite,  8  Pet.  262. 


RULE  35. 


Rule  XXXV. 

If,   upon   the  hearing,  any  demurrer  or  plea 
neinurrer   shall  be  allowed,  the  defendant  shall  be  entitled 

or  plea  al- 
lowed, dp-  fo  his  costs.     But  the  court  may,  in  its  discretion, 

ieudautto  . 

iiavecosts.  upon  motiou  of  the  plaintiff,  allow  him  to  amend 

Plaintiff        i   •      i  -n  i  •        i      n     i 

may  liis  Dill  upou  sucli  tcrms  as  it  shall  deem  reason- 

amend         - , 
bill.  able. 

A  court  of  equity  will  allow  an  amendment  of  a  bill,  after 
deciding  against  the  bill,  and  allowing  a  demurrer  on  argument. 
Hunt  vs.  Ilonsmanier' s  adm^rs,  2  Mason,  342,  365. 


RULE  36. 


Rule  XXXVI. 
No  demurrer  or  plea  shall  be  held  bad  and 


Demurrer   ovcrrulcd  UDou  arsTumcnt,  only  because  such  de- 

«r  plea  not  r  a  ?  j 

Lad  ij.-      murrer  or  plea  shall  not  cover  so  much  of  the 

rause  of 
being  too 
narrow. 


bill  as  it  might  by  law  have  extended  to. 


Rule  XXXVIL 

RULE  37.  ]^Q  demurrer  or  plea  shall  be  held  bad  and  over- 

Demnrrer  rulcd  upou  argument,  only  because  the  answer 

or  plea  not 

bad,  if  an-  of  tlic  defendant  may  extend  to  some  part  of  the 

8wer  in- 

ci.ide.s  same  matter,  as  may  be  covered  by  such  demur- 

■what  tbey 

migbt.  rer  or  plea. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  459 


The  general  rule  is,  tlmt  if  tlic  tletbiidant  answer  to  the  same     RULE  37. 
matter  wliicli  is  covered  by  his  plea,  and  which  by  his  pica  ho 
contends  he  is  not  bound  to  answer,  the  latter  overrules  the 
former.     Ferguson  vs.  O'llarra,  1  Pet.  C.  C.  493. 

Rule  XXXVIII. 
If  the  plaintiff  shall  not  reply  to  any  plea,  or    r^^'le  3^ 
set  clown  any  plea  or  demurrer  for  agiiment,  on  ricanot 

.  replifMl  to 

the  rale  day,  when  the  same  is  filed,  or  on  the  deemed 
next  succeeding  rule  day,  he  shall  be  deemed  to  and  bin 

--r»     •  1  p  11*       dismissed 

admit  the  truth  and  sufficiency  thereol,  and  his  unless  fur. 

.  _  -  .      ,  ther  time 

bill  shall  be  dismissed  as  oi  course,  unless  a  judge  allowed. 
of  the  court  shall  allow  him  further  time  for  the 
purpose. 

A  replication  to  a  plea  is  an  admission  of  the  sufficiency  of 
the  plea,  as  much  as  if  it  had  been  set  down  for  argument  and 
allowed  ;  and  all  that  the  defendant  has  to  do  is  to  prove  it  in 
point  of  fact,  and  a  dismission  of  the  bill  on  the  hearing  is  then 
a  matter  of  course.  Hughes  vs.  Bfalie,  6  Whea.  453  ;  5  Cond. 
136. 

See  also,  Voultncy  vs.  City  of  Lafayette,  3  How.  81. 

Rule  XXXIX. 

The  nile,  that  if  a  defendant  submits  to  answer    rtile  39. 
he  shall  answer  fully  to  all  the  matters  of  the  bill,  Defiant 
shall  no  longer  apply  in  cases  where  he  might  "Sswer 
by  plea  protect  himself  from  such  answer  and  J^vHere 
discovery.     And  the  defendant  shall  be  entitled  t^lZ 
in  all  cases  by  answer  to  insist  upon  all  matters  Answer 
of  defence  (not  being  matters  01  abatement,  or  to  ci.iieaii 

/>     1  '  n   f^  \    niatters  of 

the  character  01  the  parties,  or  matters  01  form)  d  frnce 
in  bar  of  or  to  the  merits  of  the  bill,  of  which  he  by  pieu. 


460  RULES  OF  THE  FEDERAL  COURTS. 

RULE  39.    may  be  entitled  to  avail  himself  by  a  plea  in  bar ; 

and  in  such  answer  he  shall  not  be  compellable 

Answer      to  unswcr  any  other  matters,  than  he  would  be 

only  such    compellable  to  answer  and  discover  upon  filing  a 

i.ec  t  S8ary    plca  in  bar,  and  an  answer  in  support  of  such  plea, 

i>ieaciio.     touching   the   matters,   set  forth  in  the   bill   to 

avoid  or  repel  the  bar  or   defence.     Thus,  for 

example,  a  bona  fide  purchaser  for  a  valuable 

consideration  without  notice,  may  set  up  that 

defence  by  way  of  answer  instead  of  plea,  and 

shall  be   entitled   to  the   same  protection,    and 

shall  not    be  compellable  to  make  any  further 

answer  or  discovery  of  his  title  than  he  would  be 

in  any  answer  in  support  of  such  plea. 

If  the  answer  admits  a  fact,  but  insists  on  matter  by  way  of 
avoidance,  the  complainant  need  not  prove  the  fact  admitted, 
but  the  defendant  must  prove  the  matter  in  avoidance.  Clarke 
vs.  White,  12  Pet.  178. 

When  the  answer  neither  admits  nor  denies  the  allegations 
of  the  bill,  they  must  be  proved  on  the  final  hearing.  Young^ 
vs.  Grundy,  G  Cra.  51 ;  2  Cond.  300. 

An  answer  responsive  to  the  bill  is  evidence  in  favor  of  the 
defendant,  Russell  vs.  Clark's  Exrs.,  7  Cra.  G9  ;  2  Cond.  417. 
But  an  answer  though  positive  and  directly  responsive  to  an 
allegation  in  the  bill,  may  be  outweighed  by  circumstances, 
particularly  if  it  be  respecting  a  fact,  which  in  the  nature  of 
things,  can  not  be  within  the  personal  knowledge  of  the  defend- 
ant. Clark's  Exrs.  vs.  Van  lliemsdyk,  9  Cra.  1/53  ;  3  Cond. 
319.    See  also  Bank  United  States  vs.  Beverly,  1  How.  134. 

A  party  can  not  state  one  case  in  a  bill  or  answer,  and  make 
out  a  different  one  by  proof:  the  allegata  and  probata  must 
agTee.     Boone  vs.  Chiles,  10  Pet.  177. 

The  rule  allowing  a  defendant,  instead  of  filing  a  formal  de- 


CIRCUIT  COURTS  TN  EQUITY  CASES.  461 


murrer  or  plea,  to  insist  on  any  special  matter  in  his  answer,     R^'i^  ^ 
is  8imj)ly  in  aiiirmance  of  the  common  practice  of  courts  of 
equity,  and  applies  to  matters  to  the  merits,  and  not  to  such 
objections  as  arc  in  abatement  merely.      Wood  vs.  Mann,  1 
Sum.  579.     Livingston  vs.  Story,  11  Pet.  351. 

The  general  rule  is  that  an  answer  directly  responsive  to 
the  bill  must  prevail,  unless  contradicted  by  the  testimony  of 
two  witnesses,  or  one  witness  corroborated  by  probable  cir- 
cumstances. Higbee  vs.  IIoj)Iciris,  1  Wash.  230.  Clark's  Exrs. 
vs.  Van  Riemsdyk,  9  Cra,  153  ;  3  Cond.  325.  Hughes  vs. 
Blahe,  G  Whea.  453;  5  Cond.  136.  Union  Bank  of  George- 
town vs.  Geary,  5  Pet.  99.  Carpenter  vs.  Prov.  Wash.  Ins. 
Co.,  4  How.  185,  217  and  cases  there  cited.  And  this  rule  is 
not  affected  by  the  fact  that  the  defendant  is  interested  to  the 
whole  amount  of  the  controversy.  Lenox  vs.  Prout,  3  Whea. 
520;  4  Cond.  310.  For  qualifications  and  limitations  of  this 
rule  see  4  Howard,  185,  above  cited. 

But  where  the  bill  is  sworn  to,  one  witness  is  sufficient. 
Learcy  vs.  ParmeU,  1  Cooke,  110,  cpioted  in  a  note  in  2  Cond. 
294. 

An  answer  not  under  oath  is  to  be  considered  merely  as  a 
denial  of  the  allegations  in  the  bill ;  analogous  to  the  general 
issue  at  law;  so  as  to  put  the  complainant  to  the  proof  of  such 
allegations.      Union  Bank  Georgetoum  vs.  Geary,  5  Pet.  99. 

On  a  bill  filed  for  an  injunction  to  stay  proceedings  in  a  suit 
at  law,  the  answer  of  the  attorney  of  the  defendant  in  the  suit 
at  law,  can  not  be  filed  as  a  substitute  for  the  answer  of  the 
defendant  himself.     Head  vs.  Consequa,  4  Wash.  174. 

An  answer  by  a  defendant  beyond  sea  must  be  taken  and 
sworn  to  by  a  commissioner  under  a  dedimns  jiotcstatcm  issued 
by  the  court,  directing  him  to  administer  the  oath  in  the  most 
solemn  forms  observed  by  the  laws  and  usages  of  the  country 
where  the  defendant  may  be.  Read  vs.  Consequa,  4  Wash. 
335.     Herman  vs.  Herman,  4  Wash.  5oo. 

The  general  rule  is,  that  if  the  defendant  answer  to  the  same 
matter  which  is  covered  by  his  plea,  and  which  by  his  plea  he 


462         RULES  OF  THE  FEDERAL  COURTS. 


RULE  39.  contends  he  is  not  bound  to  answer,  the  answer  overrules  the 
plea.  The  only  exception  is  the  case  where  an  answer  is  ne- 
cessary to  support  the  j)lea.  Fcrgtison  vs.  O'llara,  1  Pet.  C. 
C.  493. 

A  bill  in  C(|uity  may  cliargc  a  felony  and  may  be  sustained 
by  proof;  but  the  defendant  is  not  bound  to  make  a  discovery 
thereof.     Ocean  his.  Co.  vs.  Fields,  2  Story,  59,  73. 

The  answer  of  a  nominal  party  may  be  taken  under  a  com- 
mission.    Camac  vs.  Francis,  3  Wash.  108. 

See  also  as  to  how  far  answers  are  evidence ;  Leeds  vs.  Mar. 
Ins.  Co.  of  Alexandria,  2  Whea.  380 ;  4  Cond.  170.  Osborn 
vs.  Ba}ik  United  States,  9  Whea.  738;  5  Cond.  741.  Randall 
vs.  Phillips,  3  Mass.  378.  Va7i  Reimsdyk  vs.  Kane,  1  Gal. 
630.  Field  vs.  Holland,  6  Cra.  8,  24.  Learey  vs.  Farmell,  1 
Cooke,  110;  quoted  2  Cond.  294. 

Rule  XL. 

RULE  40.  [  Itescinded.  ]  A  defendant  shall  not  be  bound 
to  answer  any  statement  or  charge  in  the  bill, 
unless  specially  and  particularly  interrogated 
thereto ;  and  a  defendant  shall  not  be  bound  to 
answer  any  interrogatory  in  the  bill,  except  those 
interrogatories  which  such  defendant  is  required 
to  answer ;  and  where  a  defendant  shall  answer 
any  statement  or  charge  in  the  bill,  to  which  he 
is  not  interrogated,  only  by  stating  his  ignorance 
of  the  matter  so  stated  or  charged,  such  answer 
shall  be  deemed  impertinent. 

See  Rule  93. 

Rule  XLL 
RULE  41.        The  interrogatories  contained  in  the   interro- 
interroga-  gating  part  of  the  bill,  shall  be  divided  as  conve- 


CIRCUIT  COURTS  IN  EQUITY  CASES.  463 


nru:  4i, 


fied. 


niently  as  may  be  from  each  other,  and  numbered 
consecutively  1,  2,  3,  &c. ;  and  the  interrogate-  J;;--^;; 
ries,  which  each  defendant  is  required  to  answer,  ^^''^■ 
shall  be  specified  in  a  note  at  the  foot  of  the  bill,  tiri.s  re- 
in the  form  or  to  the  effect  following ;  that  is  to  Jped"f 

„,,  -.     ^        ,  .  .      -r-*  \     •  •        1     J.  answers  to 

say:  "The  defendant  (A.  B.)  is  required  to  an-  bespeci- 
swcr  the  interrogatories  numbered  respectively 
1,  2,  3,  &c. ;"  and  the  office  copy  of  the  bill  taken 
by  each  defendant  shall  not  contain  any  interro- 
gatories except  those,  which  such  defendant  is  so 
required  to  answer,  unless  such  defendant  shall 
require  to  be  furnished  with  a  copy  of  the  whole 
bill. 


Note  at 
foot  of  bill 


Rule  XL  II. 
The  note  at  the  foot  of  the  bill,  specifying  the 
interrogatories,  which  each  defendant  is  required  a  pari  if 

^  '  the  bill. 

to  answer,  shall  be  considered  and  treated  as  part 
of  the  bill,  and  the  addition  of  any  such  note  to 
the  bill,  or  any  alteration  in  or  addition  to  such 
note  after  the  bill  is  filed,  shall  be  considered  and 
treated  as  an  amendment  of  the  bill. 

Rule  XLIII. 
Instead  of  the  words  of  the  bill  now  in  use,   F«>in  of 

bill  prcce- 

preccding  the  interrogating  part  thereof,  and  be-  ii'"cJ  ti'« 
ginning  Avith  the  words  "To  the  end,  therefore,"  'ingpart. 
there  shall  hereafter  bo  used  words  in  the  form  or 
to  the  effect  following:  "To  the  end,  therefore, 
that  the  said  defendants  may,  if  they  can,  sliow 


464  RULES  OF  THE  FEDERAL  COURTS. 

RULE  43.  -vvhy  your  orator  should  not  have  the  relief  hereby 
prayed,  and  may,  ii2}oii  tlieir  several  and  respec- 
tive corporal  oaths,  and  according  to  the  best  and 
utmost  of  their  several  and  respective  knowledge, 
remembrance,  information,  and  belief,  full,  true, 
direct,  and  perfect  answer  make  to  such  of  the 
several  interrogatories  hereinafter  numbered  and 
set  forth,  *  as  by  the  note  hereunder  written  they 
are  respectively  required  to  answer;  that  is  to 
say,— 

"  1.  Whether,  &c. 

"  2.  Whether,  &c." 

Bills  need  not  necessarily  be  sworn  to,  and  in  practice  gene- 
rally are  not  verified,  and  in  many  districts,  they  are  never 
sworn  to,  except  when  an  injunction,  or  a  discovery,  or  some 
special  relief  is  prayed  for.  Bills,  however,  may  be  sworn  to 
in  any  case ;  but  the  effect  is  to  permit  the  defendant  to  an- 
swer under  oath,  and  his  answer  is  thus  made  evidence,  to 
overcome  which  it  will  require  the  testimony  of  two  witnesses, 
or  one  witness  with  corroborating  testimony.  Therefore, 
where  the  placing  such  power  in  the  hands  of  the  defendant  is 
for  any  reason  dangerous  or  doul)tful,  it  would  be  the  safer 
course  not  to  verify  the  bill,  or  call  for  an  answer  under  oath. 

If  an  answer  under  oath  is  waived,  the  fijrm  prescribed  in 
the  rule  may  be  varied  in  such  a  case  by  omitting  the  words  in 
italics,  and  inserting  after  the  *  "  this  complainant  hereby  waiv- 
ing the  necessity  of  the  answer  of  such  defendants  being  put 
in  under  the  oaths  of  the  said  defendants  or  the  oath  of  either 
of  them." 

As  to  how  far  answers  are  made  evidence,  see  note  to  Rule 
39. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  465 

Rule  XLIV. 
A  defendant  shall  be  at  liberty,  by  answer,  to    J^ule  44. 
decline  answerin^]^  any  interrogatory  or  part  of  what 
an  interrogatory,  from  answering  which  he  might  t.-rics  de- 
have  protected  himself  by  demurrer ;  and  he  shall  n'ucd\iot 


auswer. 


be  at  liberty  so  to  decline,  notwithstanding  he 
shall  answer  other  parts  of  the  bill,  from  which 
he  might  have  protected  himself  by  demurrer. 

Rule  XLV. 
No  special  replication  to  any  answer  shall  be    rule  46. 
fded.     But  if  any  matter  alleged  in  the  answer  spedai 
shall  make  it  necessary  for  the  plaintiff  to  amend  tion  ueed 
his  bill,  he  may  have  leave  to  amend  the  same  lued.^ 

with  or  without   the  payment  of  costs,  as  the  But  plain 

titr 

am( 
bill 


court,  or  a  judge  thereof,  may  in  his  discretion  ame'Ild^hiB 


direct. 

Special  replications  are  disused.  If* the  plaintiff  finds  it  ne- 
cessary from  the  answer  to  prove  new  matter,  the  practice  is 
to  amend  the  bill  But  if  a  special  replication  is  filed,  denying 
all  the  material  parts  of  the  answer,  and  also  charging  new 
matter,  the  new  matter  will  be  considered  as  surplusage  at  the 
hearing.     Duponti  vs.  Mussy,  4  Wash,  128. 

If  the  complainant  does  not  file  a  general  replication,  the 
answer  is  to  be  taken  as  true,  and  no  evidence  can  be  given  by 
the  complainant  to  contradict  it.  Pierce  vs.  West  Exrs.,  1 
Pet.  C.  C.  351. 

A  party  can  not,  in  his  replication,  make  out  a  new  case  dif- 
ferent from  that  stated  in  the  bill,  Vattier  vs.  Hinde,  7  Pet. 
252,  274. 

30 


466 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  46. 

New  or 
supple- 
meutal 
answer, 
when  will 
be  requir- 
ed; 


effect  of 

not  put- 
tiuii  iu. 


Rule  XLVL 

In  every  case  where  an  amendment  shall  be 
made  after  answer  filed,  the  defendant  shall  put 
in  a  new  or  supplemental  answer,  on  or  before 
the  next  succeeding  rule  day  after  that  on  which 
the  amendment  or  amended  bill  is  filed,  unless 
the  time  therefor  is  enlarged  or  otherwise  ordered 
by  a  judge  of  the  court ;  and  upon  his  default  the 
like  proceedings  may  be  had  as  in  cases  of  an 
omission  to  put  in  an  answer. 


RULE  47. 

If  all  pro- 
per per- 
isous  can 
not  be 
made  par- 
ties, court 
may  pro- 
ceed, with- 
out thtm. 


Decree 
shall  not 
prejudice 
Buch  per- 
sons. 


PAETIES  TO  BILLS. 
Rule  XLVIL 

In  all  cases  where  it  shall  appear  to  the  court, 
that  persons,  who  might  otherwise  be  deemed 
necessary  or  proper  parties  to  the  suit,  cannot  be 
made  parties  by  reason  of  their  being  out  of  the 
jurisdiction  of  the  court,  or  incapable  otherwise 
of  being  made  parties,  or  because  their  joinder 
would  oust  the  jurisdiction  of  the  court  as  to  the 
parties  before  the  court,  the  court  may  in  their 
discretion  proceed  in  the  cause  without  making 
such  persons  parties;  and  in  such  cases  the  de- 
cree shall  be  without  prejudice  to  the  rights  of 
the  absent  parties. 

All  persons  materially  intcresled  in  the  subject  of  a  chan- 
cery suit  ought  to  be  made  parties,  either  plaintiffs  or  defend- 
ants ;  but  this  is  a  rule  established  for  the  convenient  adminis- 
tration of  justice,  and  is  more  or  less  within  the  discretion  of 


CIRCUIT  COURTS  IN  EQUITY  CASES.  467 

the  court ;  and  it  should  be  restricted  to  parties  whose  interests     Ri'LE  47. 
are  in  the  i.ssue,  and  to  be  affected  by  the  decree.     The  relief 
granted  will  always  be  so  modified,  as  not  to  affect  the  interests 
of  others.     MecJi.  Bunk  of  Ahxandria  vs.  Seton,  1  Pet.  299, 
306. 

It  is  a  general  rule  in  equity,  that  all  persons  materially  in- 
terested in  the  matter  of  a  bill,  as  plaintiffs  or  defendants,  ought 
to  be  made  parties  to  it,  however  numerous  they  may  be.  But 
there  are  many  exceptions  to  the  rule.  West  vs.  Randall,  2 
Mason,  181. 

As  a  general  rule,  all  persons  in  interest  must  be  made  par- 
ties to  proceedings  in  equity  before  a  decree.  Hoxic  vs.  Carr, 
1  Sum.  173.  Osborn  \s.  Bank  United  States,  9  Whea.  733  ; 
5  Cond.  7G0.  But  no  one  need  be  made  a  party,  against  whom, 
if  brought  to  a  hearing,  there  can  be  no  decree.  Van  Riems- 
dijk  vs.  Kane,  1  Gall.  371. 

The  rule  which  requires  all  the  parties  in  interest  to  be 
brought  before  the  court,  does  not  affect  the  jurisdiction,  but 
is  subject  to  the  discretion  of  the  court,  and  may  be  modified 
according  to  circumstances.  Elme?idofJ' \s.  Taylor,  10  Whea. 
152  ;    6  Cond.  47. 

The  want  of  proper  parties  is  not  a  good  plea,  if  the  bill 
suggests  that  such  jiarties  are  not  of  the  jurisdiction  of  the 
court.  And  the  want  of  proper  parties  is  not  sufficient  ground 
f<)r  dismissing  the  bill.  Milligan  vs.  Milledge,  3  Cra.  220;  1 
Cond.  503. 

The  joinder  of  improper  parties  can  not  affect  the  juiisdic- 
tion  of  the  court  as  to*the  parties  properly  before  it.  Carneal 
vs.  Banks,  10  Whea.  181;  6  Cond.  G4.  Wormley  vs.  Wonn- 
ley,  8  Whea.  421 ;  5  Cond.  473. 

It  has  been  for  a  long  time  the  practice  of  the  courts  of  the 
United  States  to  dispense  with  the  joinder  of  parties,  who,  if 
they  wore  made  parties  to  the  suit,  would  in  consequence  of 
their  citizenship,  oust  the  jurisdiction  of  the  court,  whenever 
withotit  jinjudice  to  their  rights,  the  court  could  proceed  to 
decide  the  merits  of  the  case  between  the  other  parties  pro- 


468  RULES  OF  THE  FEDERAL  COURTS. 

RULE  47.  perly  before  it.  Harrison  vs.  Urann,  1  Story,  64.  West  vs. 
Randall,  2  Mason,  181.  Wormlcy  vs.  Wormley,  8  Whea.  421, 
451.  Russell  vs.  Clarice's  Exrs.,  7  Cra.  69  ;  2  Cond.  417. 
Mech.  Bank  Alexandria  vs.  Scton,  I  Pet.  306.  Vattier  vs. 
Hindes,  7  Pet.  252.  Boone's  Heirs  vs.  Chiles,  8  Pet.  532. 
Elmendorf  \s,.  Taylor,  10  Whea.  152;  6  Cond.  47.  Carneal 
vs.  Banks,  10  Whea.  181;  6  Cond.  54.  Harding  vs.  Handy, 
11  Whea.  103;  6  Cond.  236.  MilUgan  vs.  Milledge,  3  Cra. 
220  ;   1  Cond.  503. 

A  lunatic  must  be  made  a  party,  and  if  he  has  a  committee, 
the  committee  must  answer  for  him  ;  if  he  has  none  the  court 
appoints  a  guardian  to  defend  and  answer  for  him.  Still  he 
must  be  made  a  party  and  process  prayed  against  him.  Har- 
rison vs.  Roioen,  4  Wash.  202. 

A  certified  bankrupt  against  whom  no  relief  can  be  had,  is 
not  a  necessary  party.  Dc  Wolf  vs.  Johnson,  10  Whea.  367  ; 
6  Cond.  140. 

Where  there  is  no  change  of  the  parties  to  a  suit,  during  its 
progress,  a  jurisdiction  depending  on  the  condition  of  the  par- 
ties is  governed  by  that  condition  as  it  was  at  the  commence- 
ment of  the  suit.      ConoUy  vs.  Taylor,  2  Pet.  556. 

What  are  active  and  passive  parties.  Joy  vs.  Wurtz,  1 
Wash.  517. 

As  to  parties  generally  see  cases  above  cited,  and  as  follows : 
Morgan's  Heirs  vs.  Morgan,  2  Whea.  290;  4  Cond.  120. 
Finley  vs.  Bank  United  States,  11  Whea.  304;  6  Cond.  319. 
Mallow  vs.  Hinde,  12  Whea.  193  ;  6  Cond.  515.  Joy  et  al  vs. 
Wurtz,  1  Wash  517.  Gcrjion  vs.  Bccatine,  2  Wash.  199. 
Dandridge  vs.  Washington' s  Exrs.,  2  Pet.  370.  Mandeinlle 
vs.  Riggs,  2  Pet.  482.  Caldwell  vs.  Taggart,  4  Pet.  190. 
Corm.  vs.  Pcnn.,  5  Whea.  424;  4  Cond,  716.  Marshal  vs. 
Beverly,  5  Whea.  313;  4  Cond.  660.  Riddle  vs.  Mandeville, 
5  Cra.  322  ;  2  Cond.  268.  United  States  vs.  Howland,  4  Whea. 
108,  117;  4  Cond.  404.  Hunt  vs.  Wyclife,  2  Pet.  201,  and 
cases  cited  to  the  following  rules. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  469 

Rule  XL VIII. 
Where  the  parties  on  either  side  are  very  nu-    ^^^'J^*^ 
meroiis,  and  cannot,  witliout  manifest  inconvc-  i'-^'^''''*^^" 

'"r  very 

nience  and  oppressive  delays  in  the  suit,  be  all  ""meroui, 

•^  '  ...  court  may 

brought  before  it,  the  court  in  its  discretion  may  (iisjense 

^  _  wiiu  8ome 

dispense  with  making  all  of  them  parties,  and 
may  proceed  in  the  suit,  having  sufficient  parlies 
before  it  to  represent  all  the  adverse  interests  of 
the  plaintiffs  and  the  defendants  in  the  suit  pro- 
perly before  it.  But  in  such  cases  the  decree  shall  „|'bc  p?e- 
be  without  prejudice  to  the  rights  and  claims  of  f  r*ee.  ^ 
all  the  absent  parties. 

When  the  parties  are  very  numerous  and  it  is  very  difficult 
to  bring  them  all  in  ;  or  where  the  question  is  of  general  inter- 
est and  a  few  may  sue  for  the  whole ;  or  where  the  parties 
form  part  of  a  voluntary  association,  the  plea  of  want  of  par- 
ties will  be  repelled  and  the  court  proceed  to  a  decree.  But 
the  other  parties  may  afterward  come  in  and  have  a  rehearing. 
West  vs.  Randall,  2  Mason,  ISl,  193.  See  also  Mandcvillcws. 
Riggs,  2  Pet.  482. 

Rule  XLIX. 
In  all  suits  concerning  real  estate,    which  is    rule  49. 
vested  in  trustees  by  devise,  and  such  trustees  are  when 
competent  to  sell  and  give  discharges  for  the  pro-  nmyrep- 
ceeds  of  the  sale,  and  for  the  rents  and  profits  of  [hoseben- 
the  estate,  such  trustees  shall  represent  the  per-  Lterestcd. 
sons  beneficially  interested  in  the  estate  or  the 
proceeds,  or  the  rents  and  profits,  in  the  same 
manner,  and  to  the  same  extent,  as  the  executors 
or  administrators  in   suits   concerning   personal 


470  RULES  OF  THE  FEDERAL  COURTS. 

RULE  49.  estate  represent  the  persons  beneficially  interest- 
when        ed  in  such  personal  estate  :  and  in  such  cases  it 

such  per-  '■ 

sonsueed    shall  uot  be  nccessarv  to  make  the  persons  bene- 

notbe  ,  ^  ^       ''  '■ 

parties.  ficially  interested  in  such  real  estate,  or  rents  and 
And  when  profits,  parties  to  the  suit ;  but  the  court  may, 
™*^    *     upon  consideration  of  the  matter  on  the  hearing, 

if  it  shall  so  think  fit,  order  such  persons  to  be 

made  parties. 

In  a  proceeding  by  bill  to  sell  land  for  the  payment  of  debts, 
where  the  heir  is  a  proper  party,  it  is  not  necessary  to  make 
the  executor  a  party.  Milligan  vs.  Milledge,  3  Cra.  220 ;  1 
Cond.  503. 

On  a  bill  filed  by  an  executor  against  a  devisee  of  lands, 
charged  with  the  payment  of  debts,  for  an  account  of  the  trust 
fund,  and  the  creditors  are  not  necessarily  parties  to  the  suit, 
the  fund  may  be  brought  into  court,  and  distributed,  under  its 
direction,  according  to  the  rights  of  those  who  may  apply  for 
it.  Potter  vs.  Gardiner,  12  Whca.  498  ;  6  Cond.  606,  S.  C. ; 
3  Mason,  178. 

Reo-ularly,  claimants  to  land,  who  have  only  an  equitable 
title,  ought  to  make  those  whose  title  they  assert,  as  well  as 
the  person  from  Avhom  they  claim  a  conveyance,  parties  to  the 
suit.  For  omitting  to  do  so,  an  original  bill  may  be  dismissed. 
Simms  vs.  Guthrie,  9  Cra.  19  ;   3  Cond.  281. 

When  a  debtor  conveyed  real  estate  to  a  trustee,  who  died, 
and  a  second  was  appointed  by  the  court,  in  a  proceeding  re- 
lative to  the  trust,  the  heirs  at  law  of  the  first  trustee  must  be 
made  parties,  as  the  legal  title  of  the  trust  remained  in  them. 
GrecnleafvB.  Queen,  1  Pet.  138,  149. 

Rule  L. 
RILE  CO        In  suits  to  execute  the  trusts  of  a  will,  it  shall 
whenheir  not  bc  ucccssary  to  make  the  heir  at  law  a  party; 

at  law 


CIRCUIT  COURTS  IN  EQUITY  CASES.  471 

but  the  plaintiff  shall  be  at  liberty  to  make  the  riie  m 
heir  at  law  a  party,  Avhere  he  desires  to  have  the  need  not 
Avill  (\<tal)h.shed  against  him.  tyAfX* 

when  may 
be  umde. 

Rule  LI. 
In  all  cases  in  Avhich  the  plaintiff  has  a  joint    rule  51. 
and   several    demand    against    several    persons,  Joim 
either  as  principals  or  sureties,  it  shall  not  be  ne-  need  not 
cessary  to  bring  belbre  the  court,  as  parties  to  a  ijrought 
suit  concerning  such  demand,  all  the  persons  lia-  court! 
ble  thereto ;  but  the  plaintiff  may  proceed  against 
one  or  more  of  the  persons  severally  liable. 

IIULE   LII. 

Where  the  defendant  shall,  by  his  answer,  sug-  rule  52. 

gest,  that  the  bill  is  defective  for  want  of  parties,  Answer 

the  plaintiff  shall  be  at  liberty,  within  fourteen  TefiTlor 

days  after  answer  filed,  to  set  down  the  cause  for  pa^'Ls^ 

argument  upon  that  objection  only ;  and  the  pur-  be"seV"^^ 

pose  for  which  the  same  is  so  set  down  shall  be  ar°gumeu't 

notilied  by  an  entry,  to  be  made  in  the  clerk's  objecS.n ; 

order  book,  in  the  form  or  to  the  effect  following;  "a^niVtUe 

(that  is  to  say)  "  Set  down  upon  the  defendant's  ™^'^^' 

objection  for  want  of  parties."     And  where  the  if  not  so 

I'-n-in  1  !•  1  111     set  down, 

planitili  shall  not  so  set  doAvn  his  cause,  but  shall  I'laimifi, 

11  •   1  ^  '  J       •   1  !•  atheariiig, 

proceed  therewith  to  a  hearing,  notwithstanding  cannot 
an  objection  for  want  of  parties  taken  by  the  an-  course,  an 
swer,  he  shall  not  at  the  hearing  of  the  cause,  if  amend" 
the  defendant's  objection  shall  then  be  allowed, 
be  entitled  as  of  course,  to  an  order  for  liberty  to 


472 


RULES  OF  THE  FEDERAL  COURTS. 


ROLE  52  amend  his  bill  by  adding  parties.  But  the  court, 
if  it  thinks  fit,  shall  be  at  liberty  to  dismiss  the 
bill. 


Bill  may 
be  dis- 
missed. 


When  a  complainant  omits  to  bring  before  the  court  persons 
who  are  necessary  parties,  but  the  objection  does  not  appear 
upon  the  face  of  the  bill,  the  proper  mode  to  take  advantage 
of  it  is  by  plea  and  answer.  The  objection  of  misjoinder  of 
complainants  should  be  taken  either  by  demurrer,  or  on  the 
answer  of  the  defendants  It  is  too  late  to  urge  a  formal  ob- 
jection of  that  kind  at  the  hearing.  8tory  vs.  Livingston,  13 
Pet.  360. 

Where  an  objection  is  made  for  want  of  parties,  the  court 
gives  leave  to  amend,  and  make  proper  parties.  Harrison  vs. 
Rowan,  4  Wash.  202  ;  Dwight  vs.  Humplireys,  3  McLean,  104. 
A  bill  may  be  dismissed,  where  the  plaintiff,  when  called 
upon  to  make  proper  parlies,  refuses  or  is  guilty  of  unreasona- 
ble delay  in  doing  so ;  but  this  must  be  done  on  demurrer, 
plea,  or  answer,  pointing  out  the  person  or  persons,  whom  the 
defendants  insists  ought  to  be  made  parties.  Greenlcaf  vs. 
Queen,  1  Pet.  138,  149. 


RULE  5?. 

Defect  cf 
parties 
BUg^es'ed 
at  hear- 
ing; de- 
cree may 
protect 
the  rights 
of  such. 


Rule  LIII. 
If  a  defendant  shall,  at  the  hearing  of  a  cause, 
object,  that  a  suit  is  defective  for  want  of  parties, 
net  having  by  plea  or  answer  taken  the  objection, 
and  therein  specified  by  name  or  description  the 
parties  to  whom  the  objection  applies,  the  court 
(if  it  shall  think  fit)  shall  be  at  liberty  to  make  a 
decree  saving  the  rights  of  the  absent  parties. 

It  is  too  late  to  urge  a  formal  objection,  for  the  want  or  mis- 
joinder of  parties,  for  the  first  time  at  the  hearing.  Story  vs. 
Livingston,  13  Pet.  358,  375. 

Although  an  objection,  for  want  of  proper  parties,  may  be 


CIRCUIT  COURTS  IN  EQUITY  CASES.  473 

taken  at  the  hearing,  yet  the  objection  ought  not  to  prevail  on     ^^^■^'  w. 
the  final  hearing  of  an  appeal ;  except  in  very  strong  cases, 
and  where  the  court  perceives  a  necessary  and  indispensable 
party  in  waiting.     Meek.  Bank  of  Alexandria  vs.  Scion,  1  Pet. 
299,  300. 

NOMINAL  PAllTIES  TO  BILLS. 
Rule  LIV. 

Where  no  account,  payment,  conveyance,  or    '^^'-'^ " 
other  direct  relief,  is  sought  against  a  party  to  a  whenpar- 
suit,  not  being  an  iniant,  the  party,  upon  service  not  appear 
of  the  subpauia  upon  him,  need  not  appear  and  swcr; 
answer  the  bill,  unless  the  plaintifT  specially  re- 
quires him  so  to  do  by  the  prayer  of  his  bill ;  but 
he  may  appear  and  answer  at  his  option  ;  and  if 
he  does  not  appear  and  answer,  he  shall  be  bound  ^^^  bound 

by  i)ro- 

by  all  the  proceedings  in  the  cause.     If  the  plain-  ceedings 
tiff  shall  require  him  to  appear  and  answer,  he  causi-. 
shall  be  entitled  to  the  costs  of  all  the  proceedings  Jd^o^"'.'* 
against  him,  unless  the  court  shall  otherwise  di-  [J.'j'i'i'JiJd  ,o 
rect.  *'°«*''- 

The  court  will  not  suffer  its  jurisdictioTi,  in  an  equity  cause, 
to  be  ousted,  by  the  circumstance  of  the  joinder  or  non-joinder 
of  merely  formal  parties,  who  are  not  entitled  to  sue,  or  liable 
to  be  sued,  in  the  United  States  courts.      Wormley  vs.  Worm-  ^ 

ley,  8  Whea.  421  ;  5  Cond.  474. 

No  one  need  be  made  a  party  complaiiuint  in  whom  there 
exists  no  interest,  and  no  one  party  defendant  from  whom 
nothing  is  demanded.  Kerr  \i=,.  Watts,  6  Whea.  550;  5  Cond. 
173. 

See  also  MeeJi.  Bank  of  Alexandria  vs.  Sctons,  1  Pet.  299; 
Joy  vs.   Wirtz,  1  Wash.  517. 


474 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  55. 

Injuiicrioii 
asked  fo  r 
when 
granted  as 
of  cjnrse. 


Special  in- 
junctions, 
how 
grautable. 


Injunc- 
tions 
awiirded 
iu  vaca- 

tluti,  llUW 

long  to 
continue. 


Rule  LV. 

Whenever  an  injunction  is  asked  for  by  the 
bill  to  stay  proceedings  at  law,  if  the  defendant 
do  not  enter  his  appearance  and  plead  demur  or 
answer  to  the  same  within  the  time  prescribed 
therefor  by  these  rules,  the  plaintiff  shall  be  en- 
titled as  of  course,  upon  motion  without  notice, 
to  such  injunction.  But  special  injunctions  shall 
be  grantable  only  upon  due  notice  to  the  other 
party  by  the  court  in  term,  or  by  a  judge  thereof 
in  vacation,  after  a  hearing,  which  may  be  ex 
parte,  if  the  adverse  party  does  not  appear  at  the 
time  and  place  ordered.  In  every  case,  where 
an  injunction,  either  the  common  injunction,  or 
a  special  injunction,  is  awarded  in  vacation,  it 
shall,  unless  previously  dissolved  by  the  judge 
"rant ins:  the  same,  continue  until  the  next  term 
of  the  coiu't,  or  until  it  is  dissolved  by  some  other 
order  of  the  court. 

A  bill  for  an  injunction  is  not  considered  an  original  bill,  if 
between  the  same  parties,  as  at  law;  but  if  other  parties  are  made 
in  the  bill,  and  different  interests  involved,  it  must  be  consi- 
dered to  that  extent  at  least  an  original  bill.  Shmns  vs.  Guth- 
rie, 9  Cra.  19  ;  3  Cond.  281 ;  Drum  vs.  Clarh,  8  Pet.  1. 

Where  an  injunction  is  granted  till  anstccr  and  further  order, 
it  is  never  dissolved  until  the  answer  comes  in,  even  though 
the  defendant  lives  abroad.  Where  an  injunction  is  continued 
to  the  hearing,  the  court  will  dissolve  the  injunction,  if  it  ap- 
pears that  the  plaintiff  has  been  guilty  of  intentional  delay,  in 
prosecuting  the  cause.  Kcad  vs.  Conscqva,  4  Wash.  174, 178, 
180. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  475 


A  rule  to  show  cause  why  an  attachment  should  not  issue,  ki'i.r 
for  breach  of  an  injunction,  is  not  the  mode  of  proceedintr  i,i 
the  rlicuit  court  ;  a  motion  should  be  made  that  the  defendant 
stand  committed  for  a  breach  of  the  injunction,  and  this  motion 
is  made  on  notice  being  given  to  the  defendant.  Worcester  vs. 
Truman,  1  McLean,  483. 

BILLS    OF    REVIVOK    AND   SUPPLEMEN- 
TAL BILLS. 


RULR  56. 


Bills  of 
revivor, 


Rule  LVI. 
Whenever  a  suit  in  equity  shall  become  abated 
by  the  death  of  either  party,  or  by  any  other  event, 
the  same  mny  be  revived  by  a  bill  of  revivor,  or  vvhenjiro- 

J  ^  per ) 

a  bill  in  the  nature  of  a  bill  of  revivor,  as  the  cir- 
cumstances of  the  case  may  require,  filed  by  the  ^"bef.ed; 
proper  parties  entitled  to  revive  the  same,  Avhich 
bill  may  be  filed  in  the  clerk's  office  at  any  time;  o^t^Csue 
and  upon   suggestion   of  the   facts,   the   proper  cau.!'e'*whv 
process  of  subpoena  shall,  as  of  course,  be  issued  J"i^^^7J-*^ 
by  the  clerk,  requiring  the  proper  representatives  ^'^■^'^-  ' 
of  the  other  party  to  appear  and  show  cause,  if  No  cause 
any  they  have,  why  the  cause  should  not  be  re-  "^^.'^^" 
vived.     And  if  no  cause  shall  be  shown  at  the 
next  rule  day,  Avhich  shall  occur  after  fourteen 
days  from  the  time  of  the  service  of  the  same 
process,  the  suit  shall  stand  revived,  as  of  course. 

A  bill  in  the  nature  of  a  bill  of  review  lies  only  after  a  final 
decree,  and  not  upon  an  interlocutory  decree.  Jenlins  vs.  El- 
dr'ulgc,  3  Story,  299. 

A  bill  of  revivor  can  not  be  entertained,  where  the  contro- 
versy, which  it  seeks  to  revive,  is  now  between  citizens  of  the 


476  RULES  OF  THE  FEDERAL  COURTS. 

RULE  56.  same  slate,  though  the  parties  to  the  original  bill  wei'e  citizens 
of  different  states.     Clark  vs.  Wailieioson,  2  Sum.  262. 

All  the  parties  to  the  original  bill  should  be  made  parties  to 
the  bill  of  review.     Bank  United  States  vs.  W/iitc,  8  Pet.  262. 

Upon  the  revival  of  a  suit  by  the  representatives  of  the  ori- 
ginal parties,  it  is  the  settled  practice  to  use  all  the  testimony 
which  might  have  been  used  if  the  abatement  had  not  occur- 
red.     Vattier  vs.  IlinJe,  7  Pet.  252. 

Although  bills  of  review  are  not  strictly  within  any  act  of 
limitations  prescribed  by  Congress,  yet  courts  of  equity  consider 
them  within  the  equity  of  the  act,  limiting  the  time  within 
which  an  appeal  may  be  taken  for  five  years.  Thomas  vs. 
Harvie's  Heirs,  10  Whea.  146;  6  Cond.  44. 

For  some  of  the  distinctions  between  bills  of  review,  o^  re- 
vivor and  of  supplemental  bills,  see  Kennedy  vs.  State  Bank  of 
Georgia,  8  How.  580,  609. 

As  to  when  bills  of  review,  and  bills  in  the  nature  of  bills  of 
review  lie,  see  Dexter  vs.  Arnold,  5  Mason,  303. 

Rule  LVIT. 
RULE  57.        Whenever  any  suit  in  equity  shall  become  de- 
Suppie-      fective  from  any  event  happening  after  the  filing 

niciittil 

bill,  wi.eu  of  the  hill  (as,  for  example,  by  a  change  of  interest 
in  the  parties,)  or  for  any  other  reason  a  supple- 
mental bill,  or  a  bill  in  the  nature  of  a  supplemen- 

maybe      tal  bill,  may  be  necessary  to  be  filed  in  the  cause, 

filufl  on 

leave;        Icavc  to  file  the  same  may  be  granted  by  any 

judge  of  the  court  on  any  rule  day,  upon  proper 

cause  shown,  and  due  notice  to  the  other  party. 

leave         And  If  Icavc  is  granted  to  file  such  supplemental 

t»  ''o     ,    bill,  the  defendant  shall  demur,  plead  or  answer 

answered, 

when.  thereto,  on  the  next  succeeding  rule  day  after  the 
supplemental  bill  is  fi  ed  in  the  clerk's  office,  un- 


CIRCUIT  COURTS  IN  EQUITY  CASES. 


477 


less  some  other  time  shall  be  assigned  by  a  judge    R"|^57. 
of  the  court. 

A  supplemental  bill  is  filed  on  leave,  and  for  matter  happen- 
ing after  the  filing  of  the  hill,  and  is  designed  to  supply  some 
defect  in  the  structure  of  the  original  bill.  Kennedy  vs.  Geor- 
gia State  Bank,  8  How.  586,  610. 

New  evidence  is  not  sufficient  foundation  for  a  supplemental 
bill,  unless  it  be  of  such  a  nature  that  it  would,  if  unanswered, 
require  a  reversal  of  the  decree.  Jenkins  vs.  Eldredge,  3  Sto- 
ry, 299. 

After  an  interlocutory  decree,  a  supplemental  bill  to  admit 
new  evidence  is  never  granted,  where  the  party  might,  by  due 
diligence,  have  introduced  such  evidence  originally  in  the  cause, 
or  where  he  had  full  means  of  knowledge  within  his  reach. 
Ibid. 


Rule  LVIII. 
It  shall  not  be  necessary  in  any  bill  of  revivor, 
or  supplemental  bill,  to  set  forth  any  of  the  state- 
ments in  the  original  suit,  unless  the  special  cir- 
cumstances of  the  case  may  require  it. 

Rule  LIX. 
Every  defendant  may  swear  to  his  answer  be- 
fore any  justice  or  judge  of  any  court  of  the 
United  States,  or  before  any  commissioner  ap- 
pointed by  any  circuit  court  to  take  testimony  or 
depositions,  or  before  any  master  in  chancery  ap- 
pointed by  any  circuit  court,  or  before  any  judge 
of  any  court  of  a  state  or  territory. 

An  answer  need  not  be  sworn  to,  if  the  bill  is  not  on  oath. 
The  answer  of  a  defendant  beyond  sea,  must  be  sworn  to  by 


RULE  sa 

In  hills  of 
revivor 
and  sup- 
plemental 
bills,  what 
tilings 
need  not 
be  set 
forth. 

RULE  59. 

Answers, 
before 
whom 
may  be 
sworn. 


478 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  59.      a  commission  under  a  dedimus  potestatem.     Read  vs.  Consc- 
qua,  4  Wash.  335. 

But  the  solicitors  in  a  cause  may,  by  agreement,  determine 
how  an  answer  may  be  sworn  to,  and  such  agreement  shall 
control.  Such  agreement,  however,  must  be  literally  followed. 
Herman  vs.  Herman,  4  AVash.  555. 


RULE  CO. 

Answers, 
wherein 
may  be 
amended 
before  re- 
plication. 


After  re- 
plication, 
may  be 
amended, 
oii  leave. 


Amei  d- 
ments  sep- 
arately 
engrossed. 


AMENDMENT  OF  ANSWERS. 

Rule  LX. 
After  an  answer  is  put  in,  it  may  be  amended 
as  of  course,  in  any  matter  of  form,  or  by  filling 
up  a  blank,  or  correcting  a  date,  or  reference  to 
a  document  or  other  small  matter,  and  be  re- 
sworn, at  any  time  before  a  replication  is  put  in, 
or  the  cause  is  set  down  for  a  hearing  upon  bill 
and  answer.  But  after  replication,  or  such  set- 
ting down  for  a  hearing,  it  shall  not  be  amended 
in  any  material  matters,  as  by  adding  new  facts 
or  defences,  or  qualifying  or  altering  the  original 
statements,  except  by  special  leave  of  the  court 
or  of  a  judge  tliereof,  upon  motion  and  cause 
shown  after  due  notice  to  the  adverse  party,  sup- 
ported, if  required,  by  affidavit.  And  in  every 
case  where  leave  is  so  granted,  the  court,  or  the 
judge  granting  the  same,  may,  in  his  discretion, 
require,  that  the  same  be  separately  engrossed 
and  added  as  a  distinct  amendment  to  the  origi- 
nal answer,  so  as  to  be  distinguishable  therefrom. 

The  rules  which  govern  courts  of  CfjTiity  as  to  the  allowance 
of  time  for  filing  an  answer  and  other  proceedings  in  suits  be- 
tween individuals,  will  not  be  applied  to  controversies  between 


CIRCUIT  COURTS  IN  EQUITY  CASES.  479 

RULE  00. 


States.  Tlie  parties  in  such  cases,  must,  in  the  nature  of  things, 
be  incapahle  of  acting  with  the  promptness  of  individuals. 

Twelve  months  were  allowed  the  defendant  to  answer  the 
ameiuled  hill  of  complaint.  Rliode  Island  vs.  Massachusetts, 
13  Pet.  23. 

Where  a  defendant  has  answered  generally  to  a  matter,  of 
which  he  had  no  particular  knowledge,  he  was  allowed  to  file 
a  supplemental  answer  on  the  same  subject,  after  he  had  ac- 
quired particular  information  concerning  it.  He  may  intro- 
duce into  such  answer,  new  matter  come  to  his  knowledge 
since  filing  the  original  answer,  on  furnishing  the  opposite  par- 
ty with  the  names  of  the  witnesses  to  prove  it.  Carter  vs. 
Wood,  1  Bald.  289. 

A  court  of  chancery  will  rarely,  if  ever,  permit  amendments 
so  changing  the  character  of  the  bill  or  answer,  as  to  make 
substantially  a  new  case,  after  the  cause  has  been  set  for  hear- 
ing.     Walden  vs.  Bodley,  14  Pet.  156. 

For  statutory  enactment,  see  note  to  rule  28. 

EXCEPTIONS  TO  ANSWERS. 
Rule  LXI. 
After  an  answer  is  filed  on  any  rule  clay,  the    rule  ci. 
plaintiir  shall  be  allowed  until  the  next  succeed-  whiihiu 

^  ,  what  time 

in*^  rule  day  to  file  in  the  clerk's  office  exceptions  excep- 

^  tions  to 

thereto  for  insufficiency,  and  no  longer,  unless  a  answers 

may  be 

longer  time  shall  be  allowed  for  the  purpose,  upon  takeu; 
cause  shown  to  the  court  or  a  judge  thereof;  and  j»""t 

taken, 

if  no  exception  shall  be  filed  thereto  within  that  answer 

deemed 

period,  the  answer  shall  be  deemed  and  taken  to  suiiicieut. 
be  sufficient. 

An  answer  from  Cliiiia  being  objected  to  as  not  responsive 
to  all  the  charges  on  the  hill,  the  court  directed  the  plaintiff  to 
file  his  exceptions  in  ten  days,  and  that  if  the  new  answer  was 


480 


RULES  OF  THE  FEDERAL  COURTS. 


Rin.E  CI.     clear  of  those  exceptions,  no  new  exceptions  to  it  would  be 
heard.     Read  vs.  Consequa,  4  Wash.  335. 

An  exception  to  an  answer  for  insufficiency  should  state  the 
charges  in  a  bill,  the  interrogatory  a})plicable  thereto,  to  which 
the  answer  is  responsive,  and  the  terms  of  the  answer  verba- 
tim, so  that  the  court  may  see,  whether  it  is  sufficient  or  not. 
Broohs  vs.  Byam,  1  Story,  296,  300,  referring  to  Hodgson  vs. 
Buttcrfield,  2  Sim.  &  Stu.  236. 


ROLE  62. 

Separate 
answers 
by  same 
solicitor, 
costs  not 
allowed 
for  same, 
except  in 
master'.s 
certifi- 
cate. 


Rule  LXIL 
When  the  same  solicitor  is  employed  for  two  or 
more  defendants,  and  separate  answers  shall  be 
filed  or  other  proceedings  had  by  two  or  more  of 
the  defendants  separately,  costs  shall  not  be 
allowed  for  such  separate  answers  or  other  pro- 
ceedings, unless  a  master,  upon  reference  to  him, 
shall  certify,  that  such  separate  answers  and  other 
proceedings  were  necessary  or  proper,  and  ought 
not  to  have  been  joined  together. 


RULE  63. 

Excep- 
tions to 
answer  if 
not  sub- 
mitted to 
by  defend- 
ant, to  be 
set  down 
for  a  hear- 
ing. 


Not  set 
down, 
deemed 
abandon- 
ed. 


Rule  LXIIL 
Where  exceptions  shall  be  filed  to  the  answer 
for  insufficiency,  within  the  period  prescribed  by 
the  rules,  if  the  defendant  shall  not  submit  to  the 
same,  and  file  an  amended  answer  on  the  next 
succeeding  rule  day,  the  plaintiff  shall  forthwith 
set  them  down  for  a  hearing  on  the  next  succeed- 
ing rule  day  thereafter,  before  a  judge  of  the 
court;  and  shall  enter,  as  of  course,  in  the  order 
book  an  order  for  that  purpose.  And  if  he  shall 
not  so  set  down  the  same  for  a  hearing,  the  ex- 


CIRCUIT  COURTS  IN  EQUITY  CASES.  481 

RULE  03. 


ceptions  shall  be  deemed  abandoned,  and  the 
answer  shall  be  deemed  sufficient :  provided,  ll^^^^^ 
however,  that  the  court,  or  any  judge  thereof,  ['^yj|j" 
may,  for  good  cause  shown,  enlarge  the  time  for 
filing  exceptions,  or  for  answering  the  same,  in 
his  discretion,  upon  such  terms  as  he  may  deem 
reasonable. 

Rule  LXIV. 
If,  at  the  hearing,  the  exceptions  shall  be  al-    rilegi 
lowed,  the  defendant  shall  be  bound  to  put  in  a  Ex.ep- 

tioDS 

full  and  complete  answer  thereto,  on  the  next  allowed, 
succeeding  rule  day ;  otherwise  the  plaintiff'  shall,  to  answer 
as  of  course,  be  entitled  to  take  the  bill,  so  far  as  rule  day: 
the  matter  of  such  exceptions  is  concerned,  as  may  Take 
confessed,  or,  at  his  election,  he  may  have  a  writ  coXsTed; 
of  attachment  to  compel  the  defendant  to  make  ananrwer. 
a  better  answer  to  the  matter  of  the  exceptions ; 
and  the  defendant,  when  he  is  in  custody  upon 
such  writ,  shall  not  be  discharged  therefrom  but 
by  an  order  of  the  court,  or  of  a  judge  thereof, 
upon  his  putting  in  such  answer  and  complying 
with  such  other  terms,  as  the  court  or  judge  may 
direct. 

Rule  LXV. 
If,  upon  argument,  the  plaintiff^'s  exceptions  to    rule  65. 
the  answer  shall  be  overruled,  or  the  answer  shall  excI^- 
be  adjudged  insufficient,  the  prevailing  party  shall  ovorrukd. 
be  entitled  to  all  the  costs  occasioned  thereby,  un-  to  tavo"' 

31 


482  RULES  OF  THE  FEDERAL  COURTS. 

RULE  65     less  otherwise  directed  by  the  court,  or  the  judge 
costs,  ex-    thereof,  at  the  hearing  upon  the  exceptions. 

ceptwhen. 

KEPLICATION  AND  ISSUE. 

Rule  LXVL 
RULE  GG.        Whenever  the  answer  of  the  defendant  shall  not 
Replica-     he  excepted  to,  or  shall  be  adjudged  or  deemed 
to^beTiS  sufficient,  the  plaintiff  shall  file  the  general  repli- 
cation thereto  on  or  before  the  next  succeeding 
rule  day  thereafter;  and  in  all  cases  where  the 
general  replication  is  filed,  the  cause  shall  be 
puts  the     deemed  to  all  intents  and  purposes  at  issue,  with- 

cause  at  ..,  i'^it  •   i  •! 

issue;        out  any  rejoinder  or  other  pleading  on  either  side. 

if  none       If  thc  plaintiff  shall  omit  or  refuse  to  file  such 

fendant^     replication  within  the  prescribed  period,  the  de- 

SdiV^^    fendant  shall  be  entitled  to  an  order,  as  of  course, 

missed.      ^^^  ^  dismissal  of  the  suit;    and  the  suit  shall 

thereupon  stand  dismissed,  unless  a  court  or  a 

judge  thereof  shall,  upon  motion  for  cause  shown, 

SeXe     allow  a  replication  to  be  filed  nunc  pro  tunc,  the 

pro^tunc".^    plaintiff  submitting  to  speed  the  cause,  and  to 

such  other  terms  as  may  be  directed. 

If  the  complainant  does  not  file  a  general  replication  to  the 
answers  of  the  defendant,  the  answer  is  to  be  taken  as  true, 
and  no  evidence  can  be  given  by  the  complainant  to  contradict 
it.     Pierce  vs.  West's  Exrs.,  1  Pet.  C.  C.  351. 

A  new  case  can  not  be  made  out  by  the  replication.  Vattier 
vs.  Hinde,  7  Pet.  252,  274. 

Special  replications  are  disused.  D'wponti  vs.  Mussy,  4 
Wash.  128. 

See  also  note  to  rule  45. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  483 

TESTIMONY,  HOW  TAKEN. 

RuLK  hwn. 

After  the  cause  is  at  issue,  commissions  to  take  rule  g? 

testimony  may  be  taken  out  in  vacation  as  well  cmmis- 

as  in  term,  jointly  by  both  parties,  or  severally  by  Jake\e°ti- 

either  party,  upon  interrogatories   filed   by   the  hl'.vv^and 

party  taking  out  the  same,  in  the  clerk's  office,  bi/'takTu^ 

ten  days'  notice  thereof  being  given  to  the  adverse  ""'' 
party,  to  file  cross  interrogatories  before  the  issu- 
ing of  the  commission ;  and  if  no  cross  interroga- 
tories are  filed  at  the  expiration  of  the  time,  the 

commission  may  issue  ex  parte.     In  all  cases  the  Cc.mmis- 

.      .  .      .  1      1 1   i  1     -"'""t^rs  to 

commissioner  or  commissioners  shall  be  named  be  named 

by  the 

by  the  court,  or  by  a  judge  thereof.     If  the  par-  court. 
ties  shall  so  agree,  the  testimony  may  be  taken  „y  mS°be 
upon  oral  interrogatories  by  the  parties  or  their  ondhuer- 
agents,  without  filing  any  written  interrogatories.  '""S'^^"""^*' 

In  cases  of  disagi-eement  between  parties  in  regard  to  inter- 
rogatories and  cross  interrogatories,  they  should  be  referred  to 
a  master  in  chancery  to  be  settled  by  him,  subject  to  the  ulti- 
mate review  of  the  court  upon  an  appeal  from  such  a  report. 

Exceptions  to  interrogatories  and  cross  interrogatories  should 
be  propounded  as  objections,  before  the  commission  issues,  or 
they  will  be  deemed  waived.  Cocker  vs.  Franklin  Hemp  and 
Bagging  Company,  1  Story,  169. 

All  the  interrogatories  must  be  substantially  answered.  Ket- 
land  vs.  Bissett,  1  Wash.  144 ;  Giljyins  vs.  Consequa,  3  Wash. 
184 ;  BeU  vs.  Davidson,  3  Wash.  328  ;  Dodge  vs.  Israel,  4 
Wash.  323. 

A  deposition  taken  on  the  direct  interrogatories  can  not  be 


484  RULES  OF  THE  FEDERAL  COURTS. 

RULE  67.  read,  if  the  cross  interrogatories  are  not  put.  Gilpins  vs.  Con- 
scqva,  3  Wash.  184  ;  BeJl  vs.  Davidson,  Ibid,  328. 

The  direct  examination  of  a  witness  vv^as  had  with  the  con- 
sent of  both  parties.  The  defendant  omitted  to  file  cross  inter- 
rogatories, and  after  several  months  the  witness  died.  Held, 
that  the  omission  was  at  the  peril  of  the  party,  and  that  the 
deposition  was  admissible.     Goss  vs.  Stinson,  3  Sum.  98. 

Though  such  a  deposition  may  be  admissible  in  equity,  how 
would  it  be  in  law  1     Ibid. 

Exhibits  should  be  annexed  to  the  depositions,  or  so  designa- 
ted as  to  leave  no  reasonable  doubt  of  their  identity.  Dodge 
vs.  Israel,  4  Wash.  323. 

Commissioners,  though  named  by  the  parties,  are  not  their 
agents,  but  are  the  officers  of  the  court.  Gilpins  vs.  Consequa, 
1  Pet.  C.  C.  86. 

A  joint  commission  must  be  executed  by  all  the  commission- 
ers, but  it  is  unusual  to  require  all  to  act.  Armstrong  vs.  Brown, 
1  Wash.  43.     Mecnals  vs.  Dupont,  3  Wash.  31,  41. 

A  commission  directed  to  A  and  B,  or  either  of  them,  to 
take  depositions,  authorizes  the  deposition  of  A  to  be  taken  by 
B.     Lonsdale  vs.  Brown,  3  Wash.  404. 

A  commission  directed  to  be  executed  in  one  county  can  not 
be  executed  in  another.  Boudereau  vs.  Montgomery,  4  Wash. 
186.     PJwade's  Lessee  vs.  Selin,  4  Wash.  715,  723. 

Testimony  taken  under  a  commission,  directed  to  five  com- 
missioners, or  any  one  of  them,  can  not  be  used,  if  another 
person,  not  named  in  the  commission,  assisted  in  taking  the 
examination.      Willings  vs.  Consequa,  1  Pet.  C.  C.  301. 

A  commission  directed  to  Jive  commissioners,  to  be  executed 
by  them,  must  be  executed  by  the  whole  five  persons;  although 
the  commissioners  nominated  by  the  party  objecting  to  the  ex- 
ecution, were  present  but  did  not  act.  Armstrong  vs.  Brotvn, 
1  Wash.  43. 

For  acts  of  Congress  concerning  commissions,  and  for  refer- 
ences to  cases  of  "Foreign  Commissions"  and  practice  in  other 
cases,  see  "Powers  in  Common,"  title  "Commissions." 


CIRCUIT  COURTS  IN  EQUITY  CASES.  495 

Rule  LXVIII. 

Testimony  may  also  be  taken  in  the  cause,  R^le  m. 

after  it  is  at  issue,  by  deposition,  according  to  the  t.  stimo- 

acts  of  Congress.     But  in  such  case,  if  no  notice  "osin.,,,! 

is  given  to  the  adverse  party  of  the  time  and  place  beTaS 
of  taking  the  deposition,  he  shall,  upon  motion 

and  affidavit  of  the  fact,  be  entitled  to  a  cross  ex-  when  par- 

r    1  ■  -1  .         ^y  entitled 

ammation  ol  the  witness  either  under  a  commis-  to  across 

,  1  •    •  1  11  csamina- 

sion  or  by  a  new  deposition  taken  under  the  acts  tiou. 
of  Congress,  if  a  court  or  a  judge  thereof  shall, 
under  all  the  circumstances,  deem  it  reasonable. 

Depositions  taken  williout  a  commissioner,  or  rule  of  court, 
more  than  one  hundred  miles  from  the  place  of  trial,  hut  con- 
forming in  all  respects  to  the  30th  section  of  the  act  of  17S9, 
may  be  read  in  evidence.  Pettihonc  vs.  Derringer,  4  Wash. 
215. 

A  deposition  taken  under  a  rule  of  court,  and  sworn  to  be- 
fore a  judge,  may  be  read ;  the  judiciary  act  of  1789  refers  to 
depositions  taken  without  such  rule.  Bauert  vs.  Day,  3  Wash. 
243.  See  also  Pettihone  vs.  Derringer,  4  Wash.  215.  Read 
vs.  Bertram,  4  Wash.  558. 

An  objection  to  a  deposition  de  bene  esse,  "that  it  was  not 
taken  and  returned  according  to  law"  applies  to  it  as  a  dc))o- 
sition  in  chief,  and  does  not  dispense  with  the  necessity  of 
proving  those  circumstances  which  would  entitled  it  to  be  read 
as  a  deposition  de  bene  esse.  Thomas  S^-  Henry,  vs.  United 
States,  1  Mar.  Dec.  3G7. 

Where  a  party,  against  whom  a  deposition  is  taken,  waives 
all  objections,  such  general  waiver  does  not  make  it  a  deposi- 
tion in  chief.      Ibid. 

Objections  to  the  competency  of  a  witness  should  be  made 
at  the  time  of  taking  the  deposition  :  if  the  party  attend,  and 


486 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  &s.  the  objections  are  known ;  otherwise  he  will  be  presumed  to 
waive  them.      United  States  vs.  Hairpencils,  1  Paine,  400. 

Depositions  may  be  taken  under  the  act  of  Congress,  after 
the  expiration  of  a  rule  to  take  them.  Buckingham  vs.  Bur- 
gess, 3  McLean,  368. 

Where  there  is  an  attorney  of  record,  notice  must  be  given 
in  all   cases  of  the  taking  of  depositions.      The  Argo,  2  Gall. 

314. 

Where  depositions  are  to  be  used  against  the  United  States, 
and  there  is  an  attorney  of  the  United  States  within  one  hun- 
dred miles  of  the  place  of  caption,  notice  must  be  given  him. 
Ibid. 

For  statute  regulating  taking  depositions  de  bene  esse,  and 
for  decisions  under  same,  see  "Powers  in  Common,"  title  De- 
positions. 

For  forms  of  affidavit,  order,  notice,  and  depositions,  see 
Cmk.  Trea.,  ed.  1842,  pp.  571-574. 


RULE  69. 

Time 
within 
which  tes- 
timony 
must  he 
taken. 


Publica- 
tion of  tes- 
timony, 
when  may 
be  order- 
ed; 


when  by 
consent. 


Rule  LXIX. 

Three  months,  and  no  more,  shall  be  allowed 
for  the  taking  of  testimony  after  the  cause  is  at 
issue,  unless  the  court  or  a  judge  thereof  shall, 
upon  special  cause  shown  by  either  party,  enlarge 
the  time;  and  no  testimony  taken  after  such 
period  shall  be  allowed  to  be  read  in  evidence  at 
the  hearing.  Immediately  upon  the  return  of 
the  commissions  and  depositions,  containing  the 
testimony,  into  the  clerk's  office,  jmblication 
thereof  may  be  ordered  in  the  clerk's  office  by 
any  judge  of  the  court,  upon  due  notice  to  the 
parties,  or  it  may  be  enlarged,  as  he  may  deem 
reasonable  under  all  the  circumstances.  But  by 
consent  of  the  parties,  publication  of  the  testi- 


CIRCUIT  COURTS  IN  EQUITY  CASES.  487 

mony  may  at  any  time  pass  in  the  clerk's  office,    rile  g9. 
sucli  consent  being  in  writing,  and  a  copy  thereof 
entered  in  the  order  book,  or  endorsed  upon  the 
deposition  or  testimony. 

Notwithstanding  an  order  of  court,  closing  all  testimony  in 
the  cause,  under  a  commission,  the  court  will  enlarge  it,  upon 
proof  of  new  discovered  evidence,  which  the  party  could  not 
procure  to  be  taken  under  such  commission,  the  same  having 
come  to  his  knowledge  after  the  execution  thereof  The  Schr. 
Ruby,  5  Mason,  451. 

The  time  for  taking  testimony  will  be  enlarged,  after  publi- 
cation has  passed,  though  not  in  fact  made,  provided  some  good 
cause  is  shown  on  affidavit,  as  surprise,  accident,  or  other  cir- 
cumstances, rejielling  any  imputation  of  laches.  Wood  vs. 
Mann,  2  Sum.  316. 

Semble,  that  the  rule  ought  to  be  confined  to  cases  of  the 
discovery  of  new  evidence  of  a  docximentary  nature,  and  the 
testimony  of  witnesses  necessary  to  substantiate  this.     Jbid. 

After  publication  has  passed,  if  either  party  would  object  to 
the  competency  or  credibility  of  the  witnesses,  whose  deposi- 
tions are  introduced,  he  must  make  a  special  application  by 
petition  to  tlio  court  for  liberty  to  exhibit  articles,  stating  the 
facts  and  objections  to  the  witnesses,  and  praying  leave  to  ex- 
amine other  witnesses  to  establish  the  truth  of  the  allegations 
in  the  articles  by  suitable  proofs.  Goss  vs.  Stinson,  2  Sum. 
605,  608. 

TESTIMONY  DE  BENE  ESSE. 

Rule  LXX. 
After  any  bill  filed,  and  before  the  defendant    ^^'^  "o- 

hath  answered  the  same,   upon  affidavit  made  Testimo- 
ny iici>ei)o 
that  any  of  the  plaintiff's  witnesses  are  ag^ed  or  essewheu 

infirm,  or  going  out  of  the  country,  or  that  any  of  taken. 


488 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  70  them  is  a  single  witness  to  a  material  fact,  the 
clerk  of  the  court  shall,  as  of  course,  upon  the 
application  of  the  plaintiff,  issue  a  commission  to 
such  commissioner  or  commissioners  as  a  judge 
of  the  court  may  direct,  to  take  the  examination 
of  such  witness  or  witnesses  de  bene  esse,  upon 
giving  due  notice  to  the  adverse  party  of  the  time 
and  place  of  taking  his  testimony. 

See  note  to  rule  68. 


RULE  71. 

Form  of 
last  inter- 
rogatory. 


FORM  OF  THE   LAST   INTERROGATORY. 
Rule  LXXI. 

The  last  interrogatory  in  the  written  interroga- 
tories to  take  testimony  now  commonly  in  use, 
shall  in  the  future  be  altered,  and  stated  in  sub- 
stance thus :  "Do  you  know,  or  can  you  set  forth 
any  other  matter  or  thing,  which  may  be  a  bene- 
fit or  advantage  to  the  parties  at  issue  in  this 
cause,  or  either  of  them,  or  that  may  be  material 
to  the  subject  of  this  your  examination,  or  the 
matters  in  question  in  this  cause  ?  if  yea,  set  forth 
the  same  fully  and  at  large  in  your  answer." 

If  the  general  interrogatory  is  not  answered,  it  is  fatal  to 
the  deposition.  All  the  interrogatories  must  be  substantially 
answered.  Richardson  vs.  Golden,  3  Wash.  109.  Dodge  vs. 
Israel,  4  Wash.  323. 

It  is  no  objection  to  a  deposition  that  a  material  part  of  the 
evidence  comes  out  under  the  general  interrogatory.  Rhoade^s 
Lessee  vs.  Selin,  4  Wash.  715. 

A  witness  can  not  be  asked  if  the  facts  stated  in  an  ex  parte 


CIRCUIT  COURTS  IN  EQUITY  CASES.  489 


certificate  are  true  ;  he  should  be  interrogated  as  to  those  facts     •*'  ^^  "^ 
particularly.     Richardson  vs.  Gohltn,  3  Wash.  109. 

CROSS  BILL. 
Rule  LXXII. 
Where  a  defendant  in  equity  files  a  cross  bill    i^"le  72. 
for  discovery  only  ag^aiiist  the  plaintiff  in  the  ori-   neivndaut 
ffinal  bill,  the  defendant  to  the  original  bill  shall  i>iii,  to  an- 

....        swer  first 

first  answer  thereto,  before  the  original  plaintiff  oric.'iii<ii 

bill. 

shall  be   compellable  to  answer  the  cross   bill,  j^.^^.^rto 
The  answer  of  the  original  plaintiff  to  such  cross  f,r,'(v^^'j''' 
bill  may  be  read  and  used  by  the  party,  filing  the  \^^.^Xl^  *' 
cross  bill,  at  the  hearing-,  in  the  same  manner  and 
under  the  same  restrictions  as  the  answer,  pray- 
ing relief,  may  now  be  read  and  used. 

REFERENCE  TO  AND  PROCEEDINGS 
BEFORE  MASTERS. 

Rule  LXXIII. 

Every  decree  for  an  account  of  the  personal    ''^'[^"^ 
estate   of  a   testator   or  intestate,   shall  contain  Decree  f.r 

ail.  to  he 

a  direction  to  the  master,  to  wl  om  it  is  referred  r<f  iredto 

a  iiiustf  r. 

to  take  the  same,  to  inquire  and  state  to  the  court 
what  parts,  if  any,  of  such  personal  estate  are 
outstanding  or  undisposed  of,  unless  the  court 
shall  otherwise  direct. 

A  court  tif  chancery  may  refer  an  account  generally,  and  on 
the  return  of  the  report,  determine  such  questions  as  may  be 
contested  by  the  parties ;  or  it  may,  in  the  first  instance  decide 


490 


RULES  OF  THE  FEDERAL  COURTS. 


Rn-E  73.  xhe  principles  on  which  the  account  is  to  be  taken.  Field  vs. 
~         Holland,  6  Cra.  8;  2  Cond.  285,  29L 

A  complex  and  intricate  account  is  an  unfit  subject  for  ex- 
amination in  court,  and  ought  always  to  be  referred.  Heirs  of 
Duhcrgh  vs.  United  States,  7  Pet.  625. 

A  bill,  for  a  balance  of  an  account,  being  taken  pro  covfesso, 
the  account  must  be  referred  to  a  master.  Pendleton  vs.  Evan's 
Exrs.,  4  Wash.  39  L 

In  a  referenee  to  a  master  the  order  need  not  particularly 
empower  him  to  take  testimony,  if  the  subject  matter  is  only 
to  be  ascertained  by  evidence.  Story  vs.  Livingston,  13  Pet. 
359,  367. 


RULE  74. 

On  refer- 
ence, par- 
ty asking 
to  lay 
same  be- 
fore the 
master  liy 
next  rule 
day  ; 

penalty  for 
not  duin2 


Rule  LXXIV. 
Whenever  any  reference  of  any  matter  is  made 
to  a  master  to  examine  and  report  thereon,  the 
party  at  whose  instance  or  for  whose  benefit  the 
reference  is  made,  shall  cause  the  same  to  be  pre- 
sented to  the  master  for  a  hearing  on  or  before 
the  next  rule  day  succeeding  the  time  when  the 
reference  was  made ;  if  he  shall  omit  to  do  so, 
the  adverse  party  shall  be  at  liberty  forthwith  to 
cause  proceedings  to  be  had  before  the  master, 
at  the  cost  of  the  party  procuring  the  reference. 


RULE  75. 

Duty  (if 
master  on 
referencf  ; 


Rule  LXXV. 

Upon  every  such  reference,  it  shall  be  the  duty 
of  the  master,  as  soon  as  he  reasonably  can  after 
the  same  is  brought  before  him,  to  assign  a  time 
and  place  for  proceedings  in  the  same,  and  to 
give  due  notice  thereof  to  each  of  the  parties 
or  their  solicitors ;  and  if  either  party  shall  fail 


CIRCUIT  COURTS  IN  EQUITY  CASES.  491 

to  appear  at  the  time  and  place  appointed,  the    "I'l^^s 
master  shall  be  at  liberty  to  proceed  ex  parte, 
or  in  his  discretion  to  adjourn  the  examination 
and  proceedings  to  a  future  day,  giving  notice  to 
the  absent  party  or  his  solicitor  of  such  adjourn- 
ment; and  it  shall  be  the  duty  of  the  master  to 
proceed  with  all  reasonable '  diligence  in  every  JJi!'i'^'2"i'!|..'^ 
such   reference,  and  with  the  least  practicable  g<''"'=e; 
delay ;  and  either  party  shall  be  at  liberty  to  ap- 
ply to  the  court  or  a  judge  thereof,  for  an  order 
to  the  master  to  speed  the  proceedings,  and  to  mny  be 
make  his  report,  and  to  certify  to  the  court  or  <;•  ''1'^*^'^ 

'■  '  •'  the  pro- 

judge  the  reasons  for  any  delay,  ceudmgs. 

Rule  LXXVI. 
In  the  reports  made  by  the  master  to  the  court,    R'^e  76. 
no  part  of  any  state  of  facts,  charge,  affidavit,   Heponof 
deposition,  examination,  or  answer,  brought  in  or  wilat 
used  before  them,  shall  be  stated  or  recited.    But  contain: 
such  state  of  facts,  charge,  affidavit,  deposition, 
examination,  or  answer,  shall  be  identified,  spe-  but  what 
cified,  and  referred  to  so  as  to  inform  the  court 
what  state  of  facts,  charge,  affidavit,  deposition, 
examination,  or  answer  were  so  brought  in  or 
used. 

The  testimony  need  not  be  further  reported,  than  it  is  relied 
on  to  support,  explain,  or  oppose  a  particular  exception.  Hard- 
ing vs.  Handy,  11  Whea.  103 ;  6  Cond.  236,  243. 

The  record  must  show  what  items  have  heen  allowed  or  dis- 
allowed in  the  interior  court.     Kclscy  vs.  Hohhy,  16  Pet.  269. 


ti)  coiiiaiii. 


492  RULES  OF  THE  FEDERAL  COURTS. 

Rule  LXXVII. 
Rii.E  77.  The  master  shall  regulate  all  the  proceedings 
Master  m  evcry  hearing  before  him,  upon  every  such 
TatYp'ro^"  reference ;  and  he  shall  have  full  authority  to  ex- 
cee  lugs ,  ^j^- j^g  ^Yie  parties  in  the  cause  upon  oath,  touch- 
ing all  matters  contained  in  the  reference ;  and 
require  ^Iso  to  rcquirc  the  production  of  all  books,  papers, 
tionsof      writings,  vouchers,  and  other  documents  applica- 

book8,&.c.;  .  ,  . 

examine     blc  thcrcto ;  and  also  to  examine  on  oath,  viva 

voce,  all  witnesses  produced  by  the  parties  before 

examine     him,  aud  to  ordcr  the  examination  of  other  wit- 
witnesses 
viva  voce,    nesscs  to  bc  taken,  under  a  commission  to  be 

or  under  ^ 

commis-  issued  upou  his  certificate  from  the  clerk's  office, 
or  by  deposition  accordmg  to  the  acts  oi  Congress, 
or  otherwise  as  hereinafter  provided ;  and  also  to 
direct  the  mode,  in  which  the  matters  requiring 
evidence,  shall  be  proved  before  him ;  and  gene- 
and  direct  rally  to  do  all  other  acts,  and  direct  all  other 
ceedmgs.  iuquirics  and  proceedings  in  the  matters  before 
him,  which  he  may  deem  necessary  and  proper 
to  the  justice  and  merits  thereof,  and  the  rights 
of  the  parties. 

In  accounting  before  a  master,  the  oath  of  a  party  should 
not  be  received  to  support  charges,  which,  from  their  nature, 
admit  of  full  proof  Harding  vs.  Handy,  11  Whea.  103;  6 
Cond.  236. 

Rule  LXXVIII. 
nuLE  78.        Witnesses,  who  live  within  the  district,  may, 
witii^ses   upon  due  notice  to  the  opposite  party,  be  sum- 


CIRCUIT  COURTS  IN  EQUITY  CASES.  493 

moned  to  appear  before  the  commissioner   ap-    «i>'-e  rs. 
pointed  to  take  testimony,  or  before  a  master  or  Ik.w  may 

1    .  -,  I  ,        Ije  8UII)- 

exammer  appointed  m  any  cause,  by  subpa?na  m  moned 
the  usual  form,  which  may  be  issued  by  the  clerk  master; 
in  blank,  and  filled  up  by  tlie  party  praying  the 
same,  or  by  the  commissioner,  master,  or  examin- 
er, requiring  the  attendance  of  the  witnesses  at 
the  time  and  place  specified,  who  shall  be  allowed 
for  attendance  the  same  compensation  as  for  at- 
tendance in  court ;  and  if  any  witness  shall  re-  allowed  a 
fuse  to  appear,  or  to  give  evidence,  it  shall  be  ti"m1oraN 
deemed  a  contempt  of  the  court,  which  being 
certified  to  the  clerk's  office  by  the  commissioner, 
master,  or  examiner,  an  attachment  may  issue 
thereupon  by  order  of  the  court  or  of  any  judge 
thereof,  in  the  same  manner  as  if  the  contempt 
were  for  not  attendinjr,  or  for  refusiu"-  to  aive  tes- 


'r>' 


timony  in  the  court.     But  nothing  herein  con-  May  be 

Tin  1  .  .  ^        .  examined 

tamed  shall  prevent  the  examination  of  witnesses 


viva  voce 
in  oj)cii 


viva  voce  when  produced  in  open  court,  if  the  court. 
court  shall  in  its  discretion  deem  it  advisable. 

In  tiiking  evidence,  although  the  bettor  plan  is  to  take  the 
answers  in  writing,  upon  written  interrogatories,  witnesses 
may  be  examined  viva  voce :  the  parties  to  the  suit  being  pre- 
sent, personally  or  by  counsel,  and  not  objecting  to  such  a 
course.  The  same  reason  which  allows  the  examination  of 
witnesses  rira  voce  in  open  court,  permits  it  to  be  done  before 
a  master.     Sfonj  vs.  Livingston,  13  Pet.  359,  368. 

If  a  cause  has  been  referred,  by  an  interlocutory  decree,  to 
a  master,  and  either  party  desires  to  take  the  testimony  of  wit- 
nesses, in  order  to  establish  the  incompetency  of  a  witness, 
who  has  already  been  examined  in  the  cause,  and  whose  depo- 


494 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  73.  sition  was  before  ihe  court,  when  the  decretal  order  was  passed, 
the  a])plication  to  the  master  shoukl  be  by  petition  in  writing, 
verified  by  affidavit.     Goss  vs.  Stinson,  2  Sum.  G05. 

After  a  hearing  and  interlocutory  decree,  a  party  can  not 
object  before  the  master  to  the  credibility  of  a  witness,  whose 
testimony  was  read  at  the  hearing  without  objection.     Ibid. 

A  witness,  who  has  given  his  deposition,  which  has  been  read 
at  the  hearing,  can  not  be  examined  anew  before  the  master, 
without  a  special  order  of  the  court,  Ibid.,  and  then  only  in 
respect  to  facts  not  before  testified  to  by  them,  and  not  then  in 
issue.     Jenkins  vs.  Eldredge,  3  Story,  300. 


Rule  LXXIX. 
All  parties  accounting  before  a  master  shall 
bring-  in  their  respective  accounts  in  the  form  of 
debtor  and  creditor ;  and  any  of  the  other  parties, 
who  shall  not  be  satisfied  with  the  accounts  so 
brought  in,  shall  be  at  liberty  to  examine  the  ac- 
counting party  viva  voce,  or  upon  interrogatories 
in  the  master's  office,  or  by  deposition,  as  the 
master  shall  direct. 


RULE  79. 

Accounts, 
how  pro- 
duced ; 

Account- 
ing party 
may  l)e 
examined. 


RULE  80. 

What  affi- 
davits 
may  be 
used  be- 
fore mas- 
ter. 


RULE  81. 


Master 
may  ex- 


RuLE  LXXX. 
All    affidavits,     depositions    and    documents, 
which  have  been  previously  made,  read,  or  used 
in  the  court,  upon  any  proceeding  in  any  cause 
or  matter,  may  be  used  before  the  master. 

Rule  LXXXL 

The  master  shall  be  at  liberty  to  examine  any 
creditor  or  other  person  coming  in  to  claim  be- 
fore him,  either  upon  written  interrogatories,  or 


CIRCUIT  COURTS  IN  EQUITY  CASES.  495 

viva  voce,  or  in  both  modes,  as  the  nature  of  tlie  rli^si. 

case  may  appear  to  him  to  require.     The  evi-  cmiitor 

dence  upon  such   examination   shall   be   taken  ant. 

down  by  the  master,  or  by  some  other  person  by  Evidence 

his  order  and  in  his  presence,  if  either  party  re-  aowu." 
quires  it,  in  order  that  the  same  may  be  used  by 
the  court,  if  necessary. 

IfULE  LXXXII. 

The  circuit  courts  may  appoint  standing  mas-    j^^^e  fs. 
ters  in  chancery  in  their  respective  districts,  both  g^^^^"^, 
the  iudges  concurrin":  in  the  appointment;  and  «  "^her 

o        o  o  X  r"  ?  masters 

they  may  also  appoint  a  master  pro  hac  vice  in  "'^y  }'^  , 

\^  ,  ai>poiuted; 

any  particular  case.    The  compensation  to  be  al- 
lowed to  every  master  in  chancery  for  his  servi- 
ces in  any  particular  case  shall  be  fixed  by  the  pensation 
circuit  court  in  its  discretion,  having  regard  to  [|y  ^.e'^'^ 
all  the  circumstances  thereof;  and  the  compen-  3*11?" 
sation  shall  be  charged  upon  and  borne  by  such  i"^'^'''*^ 
of  the  parties  in  the  cause,  as  the  court  shall  di- 
rect.    The  master  shall  not  retain  his  report  as 
security   for   his   compensation ;    but  when  the  Ituihi  re- 
compensation  is  allowed  by  the  court,  he  shall  be  Ttcuii^y; 
entitled  to  an  attachment  for  the  amount  against 

1.11  1  •  n  i"^V  lia^e 

the  party,  who  is  ordered  to  pay  the  same,  ii,  up-  aiiaci.- 
on  notice  thereof,  he  does  not  pay  it  within  the  collect 
time  prescribed  by  the  court. 

It  is  completely  williin  the  discretion  of  the  court,  to  ascer- 
tain the  facts  themselves,  if  the  evidence  enables  them  to  do  it, 
or  refer  the  question  to  a  jury,  or  to  auditors,  (or  referees). 
Field  vs.  Holland,  G  Cra.  8 ;  2  Cond.  285. 


same. 


496 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  S3. 

To  returu 
rcpi)rt  to 
clerk's 
office ; 

when  may 
be  except- 
ed to ; 


when 

deemed 

admitted. 

Excep- 
tions to, 
when 
stand  for 
hearine. 


EXCEPTIONS  TO  KEPOllT  OF  MASTER. 
Rule  LXXXIIL 
The  master,  as  soon  as  his  report  is  ready,  shall 
return  the  same  into  the  clerk's  office,  and  the 
day  of  the  return  shall  be  entered  by  the  clerk 
in  the  order  book.  The  parties  shall  have  one 
month  from  the  time  of  filing  the  report,  to  file 
exceptions  thereto ;  and  if  no  exceptions  are 
within  that  period  filed  by  either  party,  the  re- 
port shall  stand  confirmed  on  the  next  rule  day 
after  the  month  is  expired.  If  exceptions  are 
filed,  they  shall  stand  for  hearing  before  the  court, 
if  the  court  is  then  in  session,  or  if  not,  then  at 
the  next  sitting  of  the  court,  which  shall  be  held 
thereafter  by  adjournment  or  otherwise. 

Tn  exceptions  to  a  master's  report,  a  general  assignment  of 
errors  is  insufficient,  unless  specific  errors  are  shown.  And 
exceptions  must  be  founded  on  the  facts  stated  in  the  report, 
or  in  the  accompanying  documents  and  proofs.  Dexter  vs.  Ar- 
nold, 2  Sum.  108. 

No  practice  can  be  more  dangerous  than  to  open  accounts, 
which  the  parties  themselves  have  adjusted.  But  if  palpable 
errors  are  shown,  the  settlement  is  so  far  considered  as  made 
upon  mistake  or  imposition,  and  is  not  obligatory  on  the  in- 
jured party.  The  whole  labor  of  proof  lies  on  the  objecting 
party.     C/iajypedcIaine  vs.  DecJimaux,  4  Cra.  306;  2  Cond.  IIG. 

Exceptions  to  a  master's  report  are  regarded  by  the  court 
only  so  far  as  they  are  supported  by  the  statements  of  the  mas- 
ter, or  a  distinct  reference  to  the  particular  portions  of  testi- 
mony on  which  the  excepting  party  relies.  The  court  does  not 
investigate  the  items  of  an  account,  nor  review  the  whole  mass 


CIRCUIT  COURTS  IN  JEQUITY  CASES.  497 

of  testimony  taken  before  the  master.     Harding  vs.  Handy,     rule  <?3. 
11  Whca.  103;  6  Cond.  236.  — 

No  exceptions  can  be  m^Ae  to  a  master's  report,  which  were 
not  made  before  the  master.  A  party  neglecting  to  bring  in 
exceptions  before  the  master,  can  not  afterwards  except  to  the 
report ;  unless  the  court  see  reason  to  be  dissatisfied  with  the 
report,  and  refer  it  to  the  master  to  reexamine,  with  leave  to 
the  party  to  object  to  it. 

Exceptions  must  state,  article  by  article,  the  parts  of  the  re- 
port excepted  to. 

Exceptions  are  in  the  nature  of  a  special  demurrer,  and  the 
party  objecting  must  point  out  the  error.  Story  vs.  Livingston, 
13  Pet.  359,  366. 

A  master's  report  can  not  be  objected  to  in  the  appellate 
court,  unless  exceptions  have  been  filed  in  the  court  below  in 
the  way  prescribed  by  the  rule.  Brochett  vs.  Brochctt,  3  How. 
691. 

It  is  not  necessary  formally  to  allow  or  disallow,  on  the  re- 
cord, exceptions  to  a  master's  report.  It  will  be  sufficient  if 
it  appears  from  the  record  that  they  have  been  considered  and 
allowed  or  disallowed.     Oliver  vs.  Piatt,  3  How.  333. 

Upon  exceptions  to  a  master's  report,  the  court,  instead  of 
setting  aside  the  rejjort,  passes  its  judgment  upon  each  one  of 
the  exceptions,  or  remands  it  with  additional  directions  as  to 
the  principles,  upon  which  it  is  to  be  stated.  Kelsey  vs.  Hob- 
hy,  16  Pet.  269. 

The  general  practice  is,  to  permit  a  report,  in  any  degree 
complex,  to  lie  for  a  second  term,  for  consideration  and  excep- 
tion, on  the  motion  of  one  of  the  parties.  In  plain  cases  the 
report  is  generally  taken  up  at  the  first  term.  Coatcs"  Exrs. 
vs.  Mt/sc's  Admrs.,  1  Mar.  Dec.  529. 

Rule  LXXXIV. 

And  ill  order  to  prevent  exceptions  to  reports    rule  &i. 
from  being-  tiled  for  frivolous  causes,  or  for  mere  Ri,i~g  to 

32 


498         RULES  OF  THE  FEDERAL  COURTS. 


RULE  «. 


delay,  the  party,  whose  exceptions  are  overruled, 
costs,  on     shall,  for  every  exception  overruled,  pay  costs  to 

ceptious  '  J  ^  '    1.     J 

''^'"s         the  other  party,  and  for  every  exception  allowed, 

overruled        •  r         J  '  j  ± 

or  allow-     si^j^ii  j^g  entitled  to  costs  —  the  costs  to  be  fixed 

ed. 

in  each  case  by  the  court,  by  a  standing  rule  of 
the  circuit  court. 


DECREES. 
Rule  LXXXV. 
RULE  85.        Clerical  mistakes  in  decrees,  or  decretal  orders. 
Decrees,     or  crrors  arising?  from  any  accidental  slip  or  omis- 

when  cler- 

icai  mis-     slou,  may,  at  any  time  before  an  actual  enrolment 

takes  may 

be  cor       tlicrcof,  be  corrected  by  order  of  the  court  or  a 

Tsctcd 

without  a  judge  thereof,  upon  petition  without  the  form  or 

rehear- 
ing, expense  of  a  rehearmg. 

Rule  LXXXVL 

RULE  86.        In  drawing  up  decrees  and  orders,  neither  the 

Decrees     bill,  uor  auswcr,  nor  other  pleadings,  nor  any  part 

tain  plead-  thcrcof,  uor  the  report  of  any  master,  nor  any 

°  '         other  prior  proceeding,  shall  be  recited  or  stated 

in  the  decree  or  order ;  but  the  decree  and  order 

shall  begin  in  substance  as  follows  :  "  This  cause 

came  on  to  be  heard  (or  to  be  further  heard,  as 

the  case  may  be)  at  this  term,  and  was  argued 

by  counsel;  and  thereupon,  upon  consideration 

thereof,  it  was  ordered,  adjudged  and  decreed  as 

follows,  viz :  [  Here  insert  the  decree  or  order.  ] 

An  original  decree  is  to  be  deemed  enrolled  and  recorded, 


CIRCUIT  COURTS  IN  EQUITY  CASES.  499 


as  of  the  term  in  which  the  final  decree  was  passed.     WJuting     rule  ■^. 
vs.  Bank  United  States,  13  Pet.  6. 

All  decrees  are  considered  as  enrolled  at  the  term  in  wliicli 
they  were  passed.     Dexter  vs.  Arnold,  5  Mason,  303. 

GUARDIANS  AND  PROCIIEIN  AMIS. 

Rule  LXXXVII. 

Guardians  ad  litem  to  defend  a  suit  may  be  R''i-e  *^- 

appointed  by  the  court,  or  by  any  judge  thereof,  Guardians 

for  infants  or  other  persons,  who  are  under  guar-  iinw  aj.-' 

dianship,  or  otherwise  incapable  to  sue  for  them-  ^""" 

selves ;  all  infants  and  other  persons  so  incapable,  ^,j^ 

may  sue  by  their  guardians,  if  any,  or  by  their  "'uardfans 

prochein  amis,  subject,  however,  to  such  orders  "\^Jl^'^' 

as  the  court  may  direct  for  the  protection  of  in-  '^"''''• 
fants  and  other  persons. 

LXXXMII. 
Every  petition  for  a  rehearing  shall  contain  the    rule  -^s. 
special  matter  or  cause,  on  which  such  rehearing  Petition 
is  applied  for,  shall  be  signed  by  counsel,  and  the  hl^h^i, 
flicts  therein  stated,  if  not  apparent  on  the  record,  c'ontliu". 
shall  be  verified  by  the  oath  of  the  party,  or  by    . 
some  other  person.    No  rehearing  shall  be  granted  Roi.ear- 
after  the  term,  at  which  the  linal  decree  of  the  wiTim.t'be 
court  shall  have  been  entered  and  recorded,  if  an  ^"^^"^^  " 
appeal  lies  to  the  supreme  court.    But  if  no  appeal 
lies,  the  petition  may  be  admitted  at  any  time 
before  the  end  of  the  next  term  of  the  court,  in 
the  discretion  of  the  court. 


500  RULES  OF  THE  FEDERAL  COURTS. 

RULE  ss.  Reliearings  after  a  decree  are  not  a  matter  of  right,  but  rest 
in  tlie  discretion  of  the  court.  Applications  for  a  rehearing, 
on  account  of  newly  discovered  evidence  ai'c  mainly  governed 
by  the  same  considerations,  as  when  leave  is  asked  to  file  a 
supplemental  bill  after  publication  of  testimony,  or  for  leave 
to  file  a  bill  of  review,  after  decree.  Daniel  vs.  Mitchell,  1 
Story,  198.     Baker  vs.  Whiting,  1  Story,  218. 

Whether  such  an  application  will  be  granted  upon  the  con- 
fessions of  a  party,  made  after  the  decree.     Querc  ?     Ibid. 

Rehearings  are  only  granted  where  some  plain  omission  or 
mistake  has  been  made,  or  something  material  to  the  decree  is 
broufht  to  the  notice  of  the  court,  which  had  been  overlooked. 
Jenkins  vs.  Eldredge,  3  Story,  299. 

A  rehearing  will  not  be  granted  merely  on  the  certificate  of 
counsel  as  to  the  sufficiency  of  the  reasons  for  it.  Emerson 
vs.  Davies,  1  Wood.  &  Min.  21. 

But  generally  there  must  be  stated  some  reason,  which  .would 
constitute  a  good  ground  for  a  new  trial  at  law.  Hunter  vs. 
Town  of  Marlboro',  2  Wood.  &  Min.  168. 

As  to  when  a  new  trial  was  refused,  see  Blagg  vs.  Phoinix 
Ins.  Co.,  3  Wash.  58.  United  States  vs.  Ilalberstadt,  Gilpin, 
262,  268.  Walker  vs.  Smith,  1  Wash.  202.  Gerbier  vs.  Emery, 
2  Wash.  413. 

A  new  trial  was  granted,  w^here  new  and  material  evidence 
had  been  discovered,  which  the  court  thought  important  to  have 
gone  to  the  jury.  Marshal  vs.  Union  Ins.  Co.,  2  Wash.  411. 
New  trials  'may  be  granted  in  criminal  cases.  United  States 
vs.  Keen,  1  McLean,  429. 

After  enrolment,  no  decree  can  be  reversed,  annulled  or  set 
aside,  but  on  a  bill  of  review  for  error  apparent,  or  some  new 
matter  not  known  at  the  time  of  the  decree.  Scott  vs.  Blaine, 
1  Bald.  287. 

As  to  the  general  nature  and  principles  applicable  in  cases 
of  rehearing,  and  what  evidence  will  be  received  in  such  ca- 
ses, see  Jenkins  vs.  Eldredge,  3  Story,  300. 


CIRCUIT  COURTS  IN  EQUITY  CASES.  501 

Rule  LXXXTX. 

The   circuit   courts   (both    judges   concurring    ^^^^^  ^• 
therein)  may  make  any  other  and  further  rules  circuit 

courts 

and  regulations  ibr  the  practice,  proceedings  and  may  make 

1     n         1      '  ^       •  •  1  •  "llier 

process,  mesne  and  final,  m  their  respective  dis-  rules. 
tricts,  not  inconsistent  with  the  rules  hereby  pre- 
scribed, in  their  discretion,  and  from  time  to  time 
alter  and  amend  the  same. 

See  notes  to  "Powers  in  Common,"  title  Rules,  ante  p.  44, 
and  notes  preceding  Rules  of  Supreme  Court. 

Rule  XC. 

In  all  cases,  where  the.  rules  prescribed  by  this    ^"^^  * 
court,  or  by  the  circuit  court,  do  not  apply,  the  ^vhen  and 

how  far 

practice  of  the  circuit  court  shall  be  regulated  by  the  prac- 
the  present  practice  oi  the  high  court  of  chan-  high  court 
eery  in  England,  so  far  as  the  same  may  reason-  ryobtaius. 
ably  be  applied  consistently  with  the  local  cir- 
cumstances and  local  convenience  of  the  district, 
where  the  court  is  held,  not  as  positive  rules,  but 
as  furnishing  just  analogies  to  regulate  the  prac- 
tice. 

Wliere  the  rules  prescribed  by  the  supreme  court  for  the 
circuit  courts  do  not  apply,  the  practice  of  the  circuit  and  dis- 
trict courts  are  regulated  by  the  practice  of  the  high  court  of 
chancery  of  England.  Story  vs.  Livingston,  13  Pet.  359,  368. 
Rhode  Island  vs.  Massachusetts,  12  Pet.  G57,  735,  739.  <S.  C, 
14  Pet.  210,  250. 

But  the  practice  of  the  high  court  of  chancery  of  England 
is  not  adopted  without  qualification;  but  only  "so  far  as  the 
same  may  reasonably  be  applied,  consistently  with  the  local 


502 


RULES  OF  THE  FEDERAL  COURTS. 


RILE  90.  circumstances  and  local  convenience  of  the  district  where  the 
court  is  held ;  and  to  that  extent,"  not  as  positive  rules,  but  as 
furnishing  analogies  to  regulate  the  practice.  Emeison  vs.  Da- 
rks, 1  Wood.  &  Min.  21,  24. 

The  practice  of  the  English  court  of  chancery,  and  not  that 
of  the  court  of  exchequer,  forms  the  basis  of  the  equity  prac- 
tice of  the  courts  of  the  United  States.  Smith  vs.  Burnham, 
2  Sum.  612. 


RULE  91. 

Affirma- 
tion may 
lie  siibsti- 
tiUed  tor 
an  oath. 


Rule  XCL 

Whenever  under  these  rules  an  oath  is  or  may 
be  required  to  be  taken,  the  party  may,  if  con- 
scientiously scrupulous  of  taking  an  oath,  in  lieu 
thereof,  make  solemn  affirmation  to  the  truth  of 
the  facts  stated  by  him. 

All  affidavit,  not  sworn  to  before  a  judge  or  a  commissioner 
appointed  to  administer  an  oath,  can  not  be  read  in  evidence. 
Haight  vs.  Proprietors  Morris  Aqueduct,  4  Wash.  601. 


RDLE  92. 

Rules 
wlicii  to 
takeertect. 
Aiijr.  1, 

Rules  of 
182'2.of  110 
further 
force. 


Clerk  to 
send  rules 
to  the 
j  11(1  ge.s  and 
clerks  of 
the  United 
States 
courts. 


Rule  XCIL 
These  rules  shall  take  effect,  and  be  of  force, 
in  all  the  circuit  courts  of  the  United  States,  from 
and  after  the  first  day  of  August  next ;  but  they 
may  be  previously  adopted  by  any  circuit  court 
in  its  discretion ;  and  when  and  as  soon  as  these 
rules  shall  so  take  effect,  and  be  of  force,  the 
rules  of  practice  for  the  circuit  courts  in  equity 
suits,  promulgated  and  prescribed  by  this  court 
in  March,  1S22,  shall  henceforth  cease,  and  be  of 
no  further  force  or  effect.  And  the  clerk  of  this 
court  is  directed  to  have  these  rules  printed,  and 


CIRCUIT  COURTS  IN  EQUITY  CASES.  503 


HI  I.K  '/>. 


to  transmit  a  printed  copy  thereof,  duly  certified, 
to  the  clerks  of  the  several  courts  of  the  United 
States,  and  to  each  of  the  judges  thereof 

Rule  XCill. 
The  fortieth  rule,  heretofore  adopted  and  pro-    ^^^  ^^ 
mulgated  by  this  court  as  one  of  the  rules  of  ^^^,^\^l'^^ 
practice  in  suits  in  equity  in  the  circuit  courts, 
be  and  the  same  is  hereby  repealed  and  annulled. 
And  it  shall  not  hereafter  be  necessary  to  interro-  Defendant 

need  not 

ffate  a  defendant,  specially  and  particularly,  upon  b  spcciai- 

Iv  intern  - 

any  statement  in  the  bill,  unless  the  complainant  gated  uu- 

.  less  a  dis- 

desires  to  do  so,  to  obtam  a  discovery.  covery  is 

sought. 
The  above  rules,  with  tlie  exception  of  the  last,  were  pro- 
mulgated by  the  supreme  court,  on  the  second  day  of  March, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  forty- 
two.  The  last  (93d)  rule  was  promulgated  December  term, 
1850. 


INDEX 

TO 

RULES   IN  EQUITY. 

ft*  it  References  in  italics  are  to  the  notes :   otherwise  to  the  rules. 


RULB. 

Affidavit  : 

Necessary  for  attachment  on  execution 8 

"            writ  of  assistance  on  execution 9 

When  necessary  to  prove  service  of  process 15 

"                to  amend  bill 29 

Must  accompany  demurrer  and  plea 31 

Before  whom  to  be  made 91 

W/ien  can  not  he  read 91 

Affirmation  : 

"Wlien  may  be  substituted  for  an  oath. ; 91 

Amendment  : 

Motion  for,  a  motion  of  course -. 5 

"           power  of  judge  to  suspend,  &c 5 

To  bill,  when  of  course  and  without  costs 28 

"        when  on  payment  of  costs 28 

Statute  and  decisions  respecting 28 

After  plea,  answer  and  demurrer,  how  made 29 

After  replication,  how  made 29 

Order  for,  when  deemed  abandoned 30 

\Vlien  on  order  without  notice 29 


506  INDEX. 

Rule- 
Amendment  (continued)  : 

When  on  order,  with  notice 29 

Of  note  at  foot  of  bill,  an  amendment  of  bill 42 

Of  answer,  when  of  course 60 

"           when  on  motion  and  notice 60 

"           when  to  be  separately  engrossed 60 

Decisions  respecting 60 

Of  decree,  when  on  petition  without  a  hearing 85 

Answer  : 

May  be  filed  at  any  time 1 

Before  whom  to  be  sworn 59 

Within  what  time  to  be  filed  and  penalty  of  not  filing  ....  18 

How  may  be  compelled 18 

Time  to  file  may  be  enlarged 19 

Taxable  costs  on,  how  regulated, 25 

Being  in,  how  bill  can  be  amended 29 

When  to  accompany  a  plea 32 

Plea  overruled,  when  to  be  put  in 34 

When  need  not  be  to  all  the  matters  in  the  bill 39 

May  insist  upon  all  matters  in  bar  of,  or  to  the  merits, 

which  could  have  been  plead *. .  -  39 

Need  not  be  to  other  matters   than  must  have  been  an- 
swered in  filing  plea  in  bar 39 

Decisions  respecting 39 

What  interrogatories  need  not  regard 44 

Alleging  matters  requiring  amendment  of  bill,    on  what 

terms  bill  may  be  amended 45 

Need  not  be  specially  replied  to 45 

Decisions,  as  to  how  far  evidence 39 

Supplemental  or  new,  when  defendant  may  put  in 46 

"                      effect  of  default  in  filing  the  same. .  46 

"                      time  to  put  in  may  be  enlarged. .  .  46 

How  sworn  to,  and  tvhen  need  not  he 59 

Amendment  of,  when  of  course 60 

"               when  on  motion  and  notice 60 

"               when  must  be  engrossed 60 


INDEX.  507 

RCLB. 

Answer  (continued)  : 

Dccisiofis  respecting, GO 

When  may  be  excepted  to  for  insufficiency Gl 

VVlien  deemed  and  taken  to  be  sufficient Gl 

Decisions  respecting Gl 

Exceptions  to,  when  may  be  set  down  for  a  hearing, G3 

"              when  deemed  abandoned G3 

"              allowed,  how  defendant  to  answer 64 

"              overruled,  defendant  entitled  to  costs 65 

Exceptions  to,  allowed,  plaintiff  has  costs 65 

Exceptions  to,  allowed,  further  answer  how  compelled  ...  64 

Separate  ones  by  same  solicitor,  costs  on 62 

To  cross  bill,  when  to  be  put  in 72 

To  cross  bill,  how  may  be  used  by  original  defendant 72 

Reference  to  master  for  scandal  or  impertinence,  how  made  27 

Reference  to  master,  order  for,  when  deemed  abandoned  .  27 

Appearance : 

Of  defendant,  when  must  be  made 17 

Of  defendant,  how  entered 17 

Decisions  respecting 17 

Of  nominal  parties,  rule  as  to 54 

Of  nominal  parties,  effect  of 54 

Arrest  : 

For  disobeying  execution,  when  ordered 8 

For  disobeying  execution,  how  discharged  from 8 

Of  defendant  to  compel  an  answer,  when  made IS 

Of  defendant  to  compel  an  answer,  how  discharged  from  .  18 

Assistance  : 

Writ  of,  when  proper  process 7 

Writ  of,  to  enforce  order  for  delivery  of  possession 9 

Attachment  : 

Writ  of,  when  proper  process 7 

To  compel  obedience  to  execution 8 


508  INDEX. 

Rule. 

Attachment  (continued) : 

To  compel  answer 18 

To  compel  better  answer  after  exception 64 

By  masters  to  collect  compensation —  82 

Bill  : 

May  be  filed  at  any  time 1 

Before  whom  may  be  sworn 59 

Motion  to  take  as  confessed,  a  molion  of  course 5 

Motion  to  take  as  confessed,  may  be  made  at  any  time  ...  5 

Must  be  filed  before  subpcena  can  issue 11 

Pro  confesso,  when  plaintiff  entitled  to  take 18 

"            decree  on,  when  may  be  made 18 

"            when  decree  may  be  set  aside 19 

Decisions  respecting 19 

Introductory  part,  form  of 20 

Common  confederacy  clause — charging  part  and  jurisdic- 
tion clause  may  be  omitted 20 

Not  demurrable  for  such  omissions 21 

Stating  part,  what  may  contain 21 

Prayer  of,  for  special  and  general  relief 21 

Decisions  respecting 21 

Must  specially  ask  for  injunction,  ne  exeat,  or  other  spe- 
cial order 21 

Necessary  persons  not  made  parties  to,  reason  of  omission 

must  be  stated 22 

Necessary   parties  to,  beyond  jurisdiction,    what  prayer 

must  contain,  relating  thereto 22 

Must  be  signed  by  counsel 24 

Decisions  respecting 24 

Taxable  costs  on,  how  regulated 25 

Must  be  brief  and  succinct 26 

Decisions  resj^ectitig 26 

To  contain  no  unnecessary  recitals,  or  impertinent  or  scan- 
dalous matter 20 

If  does,  may  be  referred  to  a  master 26 

Not  to  be  referred,  unless  excej^lions  particularly  taken  in 

writing  and  filed 27 


INDEX.  509 

Rule. 

Bill  (continued)  : 

Ordt-r  of  reference,  when  deemed  abandoned 27 

Amendments  to,  when  of  course,  and  without  costs 28 

"               when  on  payment  of  costs 28 

"               after  plea,  answer  or  demurrer 29 

"               after  replication 29 

"               by  amending  note  at  foot  of 42 

"               when  copy  to  be  served  on  defendant  ...  28 

Order  to  amend,  when  deemed  abandoned 30 

How  may  be  amended,  when  answer  makes  amendment 

necessary 45 

Amended  after  answer,  a  new  answer  necessary 46 

May  be  plead  and  demurred  to,  or  answered,  in  whole  or  in 

part,  at  the  same  time 32 

May  be  dismissed  if  plea  is  not  replied  to,  or  set  down  for 

argument 38 

To  specify  in  a  note  the  interrogatories  each  defendant  is 

to  answer 41 

Office  copy,  what  interrogatories  need  not  contain ; . .  .  41 

Note  at  foot  of  same,  a  part  thereof 42 

Introduction  to  interrogating  part  thereof 43 

Need  not  he  on  oath 43 

Revivor,  when  proper 5Q 

Revivor,  what  need  not  be  set  forth  in 58 

Decisions  respecting 56 

Supjilemental,  when  proper 57 

"             what  need  not  be  set  forth  in 58 

"              when  defendant  must  answer 57 

May  be  dismissed  if  replication  is  not  filed QQ 

When  to  contain  special  interrogatories    93 

Clerk  : 

In  attendance  on  first  Monday  of  each  month  at  ofiice,  for 

what  purpose 2 

To  keep  order  book,  and  enter  all  orders  therein 4 

When  to  issue  ^vI•it  attachment  on  execution 8 

Wlien  to  issue  writ  assistance 9 

When  to  issue  writ  subpa?na 12 


510  INDEX. 

Rule. 

Clerk  (continued) : 

When  to  enter  a  suit  as  pending   16 

To  enter  appearance  of  defendant 17 

Supreme  court,  to  whom  to  send  equity  rules 92 

Office,  for  what  purpose  always  open 1 

Office,  for  what  open  on  first  Monday  of  every  month 2 

COMMMISSIONS  : 

May  be  issued  and  returned  at  any  time, 1 

To  take  testimony,  when  and  how  obtained 67 

Interrogatories  and  cross  interrogatories  on 67 

When  may  be  executed  on  oral  interrogatories 67 

Interrogatories,  how  settled 67 

All  of  the  interrogatories  must  he  answered 67 

Within  what  time  must  be  executed 60 

AVhen  master  may  order  to  issue 77 

Notice  of,  to  tvhom 68 

Wlien  adverse  party  entitled  to,  having  had  no  notice  of 

former  commission 68 

Statute  and  decisions  respecting 67,  68,  69 

To  take  testimony  de  bene  esse 70 

Form  of  last  interrogatory  in 71 

Commissioners  : 

Who  must  be  named  by 67 

Duties  of,  (l^c,  and  decisions  respecting 67 

Fees  of. 67 

Compensation  : 

Of  masters,  how  fixed  and  collected 82 

Complainant : 

Seeking  discovery  to  interrogate  defendant 93 

Contempt  : 

To  refuse  to  obey  orders  of  a  master 78 

Decisions  respecting  same  generally 7 


INDEX.  511 

RULB. 

Costs  : 

Plaintifi'to  have,  on  vacating  order  pro  conf'esso !'• 

On  bill  of  answer,  how  fixed 25 

On  reference  of  exceptions  to  bill,  when  to  plaintiff" 2G 

On  reference  of  exceptions  to  bill,  when  to  defendant 26 

When  plaintiff"  to  pay,  on  amendment  of  bill 28 

When  to  plaintiff",  demurrer  and  plea  overruled 34 

When  to  defendant,  demurrer  and  plea  allowed 35 

When  nominal  party  entitled  to 5  i 

When  to  same  solicitor,  on  separate  answers 02 

On  exceptions  to  answer,  when  allowed 65 

On  exceptions  to  master's  report,  when  and  how  allowed . .  84 

Counsel  : 

To  sign  bill,  and  eff"ect  of  so  doing 24 

To  certify  demurrer  or  plea 31 

To  sign  petition  for  rehearing 88 

Courts  : 

General  decisions  concerning Pre. 

For  what  purposes  always  open 1 

Statute  relating  to 1 

Any  judge  of  same  power  to  make  rules,  &c.,  as  the  court  3 

Statute  relating  to 3 

Can  two  he  lield  at  same  time,  at  same  place 3 

Orders  and  decrees  of,  how  obedience  to  compelled 7 

May  appoint  persons  to  serve  process 15 

May  enlarge  time  to  comply  with  an  execution 8 

May  open  order  pro  confesso,  on  what  terms 19 

Decisions  respccti/ig 19 

When   may  proceed  in  a  cause,  if  all  proper  persons  are 

not  made  parties 47,  48 

What  decree  can  make  in  such  a  case 47,  48,  53 

Decisions  respecting 47,  48 

May  appoint  standing  masters,  or  pro  hoc  vice 82 

Decisions  respecting 82 

May  regulate  master's  compensation 82 


512  INDEX. 

Rule- 
Courts  (continued)  : 

May  appoint  guardian  ad  litem  and prochein  amis 87 

May  make  and  alter  rules  of  court 89 

Decisions  respecting 89 

Cross-bill  : 

Need  not  be  answered  until  original  bill 72 

Answer  to,  how  may  be  used  at  hearing 72 

Cross-examination  : 

Under  a  commission,  when  may  be  had 68 

Cross-interrogatories  : 

To  commission,  when  must  be  filed 67 

Death  of  party  : 

How  cause  may  be  revived 56 

De  bene  esse  : 

Witnesses  when  may  be  examined  before  answer 70 

Upon  what  terms  may  be  examined 70 

Decrees  : 

Interlocutory  or  final,  how  enforced 7 

How  enforced  against  those  not  parties 10 

When  not  to  prejudice  the  rights  of  absent  parties 47,  48 

Saving  rights  of  absent  parties,  when  made 53 

For  an  account,  when  to  be  referred  to  a  master 73 

Form  of  commencement  of 86 

Not  to  contain  any  of  the  pleadings 86 

When  may  be  amended  without  a  hearing 85 

Decisions  respecting 86 

Defendant : 

Subpoena  against,  may  be  joint  or  several 12 

Appearance  day  of,  when 17 

Appearance,  how  entered 17 

May  appear  personally  or  by  a  solicitor 17 


INDEX.  513 

Rule. 

Defendant  (continued) : 

When  to  file  plea,  demurrer  or  answer 18 

May  be  compelled  to  answer  by  attachment 18 

IIow  discharged  from  arrest  on  attachment 18 

When  liable  to  costs,  bill  not  scandalous 26 

Must  verify  plea  or  demurrer 31 

When  may  plead  and  demur,  and  how 32 

When  to  accompany  plea  with  answer 32 

Decisions  respecting 32 

When  to  pay  costs,  demurrer  or  plea  overruled 34 

When  to  have  costs,  demurrer  or  plea  allowed 34 

To  answer,  plea  or  demurrer  overruled 34 

Rule  that  he  must  answer  fully,  when  not  to  apply 39 

May  answer  all  matters  in  bar  of,  or  to  the  merits  which 

he  could  avail  himself  of  by  plea 39 

Need  not  answer  other  matters  than  if  he  had  answered 

with  plea 39 

Need  not  answer  such  parts  of  bill,  as  could  protect  him- 
self from  by  demurrer 44 

Suggesting  in  his  answer  want  of  parties,  plaintiff  may  set 

down  the  cause  on  that  objection 52 

Not  appearing  when  injunction  asked  for,  injunction  grant- 
ed of  course 55 

Must  plead,  demur  or  answer  to  supplemental  bills 57 

To  answer  anew,  exceptions  to  answer  allowed 64 

May  be  attached  to  compel  new  answer 64 

When  discharged  from  such  attachment 64 

To  pay  costs,  answer  adjudged  insufficient 65 

Need  not  specially  interrogate,    except   when    discovery 

sought 93 

Demurrer : 

When  to  be  filed,  and  penalty  of  default 18 

Put  in,  how  bill  may  be  amended 29 

Must  be  certified  by  counsel  before  filing 31 

When  defendant  may  take 32 

May  be  to  whole  or  part  of  the  bill 32 

33 


514  INDEX. 

Rule. 

Demurrer  (continued)  : 

Plaintiff"  may  sit  down  for  argument 33 

Overruled,  when  plaintiff"  to  have  costs 34 

Overruled,  defendant  to  answer,  or  bill  may  be  taken  as 

confessed   34 

Decisions  respecting 34 

Allowed,  defendant  to  have  costs 35 

Allowed,  when  plaintiff"  may  amend  bill 35 

Decisions  respecting 35 

Not  bad,  because  not  as  broad  as  might  be 36 

Not  bad,  because  answer  may  cover  same  thing 37 

Not  set  down  for  argument,  truth  of  deemed  admitted  —  .  38 

Deposition  : 

When  testimony  may  be  taken  by 68 

Taken  without  notice,  adverse  party  entitled  to  cross  ex- 
amination    68 

When  to  be  returned  to  clerk's  office 69 

Decisions  respecting 67,  68,  69 

Discovery  : 

Sought,  defendant  to  be  specially  interrogated, 93 

When  sought,  how  to  be  obtained 18 

Ex  PARTE  : 

Cause  may  be  proceeded  in,  if  defendant  does  not  appear  18 

Decree,  when  may  be  made,  defendant  not  appearing 18 

Decree,  when  deemed  absolute 19 

When  master  may  proceed,  on  reference 75 

Examination  : 

Of  parties  on  oath,  before  master 77,  79 

Of  creditors  before  master 81 

Exceptions  : 

Motion  for  filing  a  motion  of  course 5 

To  bill,  when  may  be  taken 26 

"         may  be  referred  to  master 26 


INDEX.  515 

Rdlb. 

Exceptions  (continued)  : 

To  bill  sustained,  matter  to  be  expunged 2G 

"         sustained,  plaintiflf  to  pay  costs 2G 

"         not  sustained,  plaintiff"  lias  costs 20 

*'         to  be  in  writing,  and  particular 27 

"         when  must  be  filed 27 

"         when  deemed  abandoned 27 

To  answer  for  insufficiency,  when  may  be  made Gl 

"             not  made,  answer  deemed  sufficient Gl 

"             when  plaintiff"  may  set  down  for  hearing 63 

"             when  deemed  abandoned 63 

"  allowed,  defendant  to  answer  fiilly,  or  bill  may 

be  taken  confessed 64 

"             allowed,  plaintiff'  may  have  attachment  to  com- 
pel an  answer 64 

"             allowed,  plaintiff'  has  costs 65 

"             overruled,  defendant  has  costs 65 

To  master's  report,  within  what  time  to  be  filed 83 

To  master's  report,  when  to  stand  for  hearing S3 

To  mastcr^s  report,  decisions  respcvting 83 

To  master's  report,  costs  on  and  how  fixed 84 

Execution  : 

For  payment  of  money,  form  of 8 

For  performance  of  any  specific  act,  what  to  contain 8 

Not  complied  with,  attachment  may  issue 8 

When  followed  by  writ  of  sequestration 8 

Statutes,  and  decisions  respecting 8 

Guardian  ad  litem  : 

When  may  be  appointed  by  court 87 

Suits  may  be  in  their  name 87 

Heir  at  law  : 

When  not  a  necessary  party  to  a  bill 50 

AVlicn  plainllff'  may  make  a  party 5  0 


516  INDEX. 

RULB. 

High  court  of  chancery  : 

Rules  of,  when  and  how  far  applicable 90 

Decisions  respecting 90 

Husband  and  wife  : 

To  be  included  in  one  subpoena 12 

Injunction  : 

Must  be  specially  asked  for  in  prayer  for  relief 21 

Need  not  be  asked  for  in  prayer  for  process 23 

Granted  of  course,  defendant  not  appearing 55 

Special,  grantable  only  on  notice 55 

Awarded  in  vacation,  how  long  continues 55 

Statute  and  decisions  respecting 55 

Impertinent  matter  : 

In  bill,  exception  taken,  may  be  referred  to  a  master 26 

"         if  found,  to  be  expunged 2Q 

"         if  found,  plaintiff  to  pay  costs 26 

"         not  found,  plaintiff  has  costs 26 

"         exceptions  to  be  in  writing  and  particular,  or  no 

reference  ordered 27 

"         exceptions  when  to  be  filed 27 

"         order  to  refer  exceptions  when  deemed  abandoned  27 

"         decisions  respecting 27 

Interlocutory  proceedings  : 

May  be  taken  at  any  time 1 

Disposed  of,  first  Monday  of  every  month 2 

May  be  made  and  directed  by  a  judge  in  vacation 3 

Notice  to  show  cause,  when  made  by  judge  in  vacation. .  3 

Interrogatories  : 

In  bills,  to  be  numbered 41 

Note  at  foot  of  bill  to  specify  those  each  defendant  is  to 

answer 41 

Which  ones,  office  copy  of  bill  need  not  contain 41 

On  commissions  to  take  testimony 67 


INDEX.  517 

Rdlb. 

Interrogatories  (continued)  : 

On  coniTnissions,  may  be  written  or  oral C7 

On  commissions,  notice  of"  filing 67 

Cross,  on  commissions,  when  to  be  filed 07 

On  commissions,  form  of"  last  one 71 

Decisions  respecting 07,  71 

Issue  : 

Cause  at,  on  filing  general  replication 66 

Joint  debtors : 

Need  not  all  be  proceeded  against 51 

Judge : 

Single,  same  power  to  make  rules,  &:c.,  as  court 3 

"         may  make  rules,  &:c.,  in  vacation,  and  term 3 

"         but  upon  notice  to  adverse  party 3 

Judges : 

May  abridge  time  of  rules,  &c.,  when  solicitors  for  all  the 

parties  reside  in  or  near  the  same  town 4 

Marshal  : 

Or  his  deputy  to  serve  process  generally 1 .5 

Decisions  respecting  service 15 

Master  : 

Reference  to,  on  exceptions  to  bill  for  scandal  and  imper- 
tinence    26 

On  what  terms  such  reference  will  be  made 27 

When  such  order  deemed  abandoned 27 

To  determine  when  same  solicitor  to  have  costs  for  sepa- 
rate answers 62 

Reference  to  on  a  decree  for  account,  when 73 

Decisions  respecting 73 

Within  what  time  such  a  reference  to  be  made 74 

Duty  of  party  procuring  such  reference 74 

When   adverse  party  may  proceed  at  expense  of  other 

party 74 


518  INDEX. 

RULB. 

Master  (continued) : 

Duties  of,  on  such  a  reference 75 

When  may  proceed  ex  parte  or  adjourn 75 

May  be  ordered  to  speed  his  proceedings 75 

Report  of,  on  such  a  reference,  what  to  contain  and  what 

not 76 

Decisions  respecting 76 

May  regulate  all  proceedings  before  him 77 

May  examine  parties  under  oath 77 

Decisions  respecting 77 

May  require  production  of  documents 77 

May  examine  witnesses,  viva  voce 77 

May  order  commission  to  issue  to  take  testimony 77 

May  subpoena  witnesses  within  the  district 78 

Decisions  respecting 78 

Accounts  of  parties,  how  brought  before 79 

Accounting  party  may  be  examined  before 79 

May  use  affidavits,  depositions  and  documents  previously 

made  or  used  in  court 80 

May  examine  creditors  and  others 81 

To  take  down  such  evidence,  if  required .  -  81 

Standing  ones,  or  pro  hac  vice,  may  be  appointed 82 

Compensation  of,  how  determined 82 

Can  not  retain  his  report  as  security 82 

May  have  attachment  to  collect  his  fees 82 

Master's  report  : 

When  to  be  returned  to  clerk's  office 83 

Within  what  time  to  be  excepted  to 83 

When  deemed  confirmed 83 

Exceptions  to,  when  to  stand  fur  hearing 83 

Decisions  resp>er,ting 83 

Exceptions  to,  allowed  or  overruled,  how  to  carry  costs. .  84 

Motions  : 

Interlocutory  may  be  made  at  any  time 1 

Interlocutory  received  and  disposed  of  on  first  Monday  of 

every  month 2 


INDEX.  519 

Rdlb. 

Motions  (continued)  : 

Of  course,  what  so  regarded 5 

Of  course,  may  be  altered,  &c,  on  special  cause 5 

Not  of  course,  to  be  made  and  entered  on  a  rule  day. ...  G 

"              to  be  heard  on  next  ride  day 6 

"             when  may  be  heard  ex  parte G 

To  set  aside  order  taking  bill  confessed,  on  what  terms 

granted 19 

To  amend  bill,  after  plea  &c.  filed,  how  granted 29 

To  amend  answer,  after  replication,  how  granted GO 

Ne  exeat  : 

Eill  to  specially  ask  in  prayer  for  relief 21 

Need  not  be  asked  for  in  prayer  for  process 23 

Notice  : 

To  show  cause  on  interlocutory  proceedings,  when 3 

Of  orders,  when  entry  in  order  book  sufficient 4 

To  solicitors,  when  good  for  parties 4 

To  parties,  when  must  be  personal 4 

Of  orders,  &:c.,  length  of  when  may  be  abridged 4 

For  injunction,  when  must  be  given 55 

For  injunction,  when  need  not  be  given 55 

To  amend  bill,  after  replication 29 

To  withdraw  replication 29 

To  amend  answer,  after  replication 60 

Upon  issuing  commission  to  take  testimony G7 

Of  hearing  before  a  master 75 

Oath  : 

When  affirmation  in  place  of 91 

Orders  : 

Interlocutory,  may  be  made  at  any  time 1 

Interlocutory,  may  be  disposed  of  on  first  Monday  every 

month 2 

To  be  entered  in  a  book 4 


520  INDEX. 


Rdlb. 


Orders  (continued)  : 

What  regarded  as  of  course 5 

AVhat  regarded  as  not  of  course 5 

How  enforced  against  parties  and  others 7,  10 

How  enforced  in  favor  of  those  concerned 7,  10 

Pro  confesso,  on  what  terms  may  be  set  aside 19 

To  refer  bill  for  scandalous  and  impertinent  matter,  how 

obtained 27 

When  such  order  deemed  abandoned 27 

Order  book  : 

To  be  kept  by  clerk 4 

To  be  always  open  for  inspection 4 

Entry  of  orders  in,  when  notice  to  parties 4 

Party  : 

Death  of,  how  suit  revived  against  representatives 56 

"          representatives  may  be  cited  to  show  cause —  .  56 

"          effect  if  representatives  do  not  show  cause 56 

Procuring  reference  to  master,  duty  of 74 

Parties  : 

When  notified  by  notice  to  their  solicitors 4 

When  may  be  arrested  for  disobeying  execution 8 

When  proper  persons  not  made,  reasons  to  be  given 22 

Out  of  jurisdiction,  prayer  respecting 22 

Proper  persons  not  made,  when  court  may  proceed. ...   47,  48 

Very  numerous,  when  need  not  be  made  parties 48 

Decree  not  to  prejudice  rights  of  absent  ones 47,  48 

Statute  and  decisions  respecting 47,  48 

When  may  be  represented  by  their  trustees 49 

Decisions  respecting 49 

Want  of  may  be  suggested  by  answer 52 

Proceedings  on  such  suggestion 52 

Decisions  respecting 52 

Proceedings  when  answer  makes  no  such  suggestion 53 

Decisions  respecting 53 


INDEX.  521 

IlDLB. 

Partiks  (continued)  : 

Nominal,  who  are  and  when  need  not  appear 54 

'*        effect  of  appearance  of 54 

"         appearing  when  to  have  costs 54 

Decisions  respecting 54 

May  be  examined  by  a  master  on  a  reference 77 

Accounts  of,  how  presented  liefore  a  master 79 

May  be  examined  touching  their  accounts 79 

Plaintiff  : 

Wlien  may  take  bill  confessed 18 

When  may  have  attachment  to  compel  answer 18 

Wlien  to  pay  costs,  on  reference  of  bill  for  scandalous  and 

impertinent  matter 26 

May  set  down  demurrer  for  argument 33 

May  take  issue  on  plea 33 

When  to  have  costs,  demurrer  or  plea  overruled 34 

May  amend  bill,  demurrer  or  plea  allowed So 

When  admits  truth  of  demurrer  or  plea 38 

When  should  make  heir  at  law  a  party 50 

May  proceed  against  one  or  more  persons  severally  liable  51 

When  may  not  amend  bill,  of  course,  for  want  of  parties.  52 

Bill  of,  when  may  be  dismissed,  for  want  of  parties 52 

Decisions  respecting 52 

When  to  file  replication 66 

When  may  file  replication,  nunc  pro  tunc 66 

Not  filing  replication,  effect  of 66 

When  may  take  testimony,  before  answer 70 

Answer  to  cross-bill,  how  may  be  used  by  defendant 72 

Pleadings : 

May  be  filed  at  any  time 1 

Replication  the  last 66 

Bill,  see  title  Bill. 
Answer,  see  title  Answer, 
Replication,  see  title  Replication, 


522  INDEX. 

RVLB. 

Plea  : 

Must  be  certified  to  by  counsel 31 

Decisions  respecting 31 

AVhen  must  be  filed,  and  penalty  of  default 18 

Must  be  verified 31 

Put  in,  terms  of  amending  bill 29 

Within  what  time  may  be  put  in 32 

When  to  be  accompanied  by  answer 32 

May  be  to  the  whole  or  part  of  a  bill 32 

Plaintiff"  may  take  issue  upon 33 

Determined  for  defendant,  how  far  to  avail  him 33 

Dccisiofis  respecting 33 

Overruled,  defendant  to  answer,  or  bill  may  be  taken  as 

confessed 34 

Overruled,  when  plaintiff  to  have  costs 34 

Decisions  respecting 34 

Allowed,  defendant  to  have  costs 35 

Allowed,  plaintiff'  may  amend  bill 35 

Decisions  respecting 35 

When  not  to  be  held  bad 36,  37 

If  not  replied  to,  deemed  true 38 

Prochein  amis  : 

Suits  may  be  in  their  name 87 

Process : 

May  be  issued  and  returned  at  any  time 1 

Decisions  respecting 7 

Same  kind  issues  in  favor  of  all,  whether  parties  or  not . .  10 

By  whom  to  be  served 15 

In  what  district  may  he  served 15 

Prayer  for,  what  to  contain 23 

Recitals  : 

Not  to  be  made  in  bills 26 


INDEX.  523 

RULB. 

Reference : 

Of  bills  for  scandal  and  impertinence 20,  27 

When  same  solicitor  puts  in  separate  answer G2 

To  master,  on  decree  for  an  account 53-85 

See  title  Master. 

Rehearing : 

Petition  for,  what  to  contain 88 

"            must  be  signed  by  counsel 88 

"            when  must  be  verified 88 

When  will  not  be  granted 88 

Decisions  respecting 88 

Rejoinder  : 

Not  required 66 

Report  of  master  : 

When  may  be  hastened 75 

What  to  contain  and  what  not 76 

Can  not  be  retained  for  fees 82 

Replication  : 

Filed,  terms  of  amending  bill 29 

Decisions  respecting 29 

No  special  one  needed  to  answer 45 

Decisions  respecting 45 

When  to  be  filed 66 

Filed,  cause  is  at  issue 66 

Not  filed,  bill  may  be  dismissed 66 

When  may  be  filed  nunc  pro  tunc 66 

The  last  pleading 66 

Decisions  resjjccting G6 

Revivor  : 

Bill  of,  when  proper 56 

Decisions  resjjccting 56 


524  INDEX. 

RULB. 

Rules  : 

Interlocutory,  may  be  made  at  any  time 1 

Interlocutory,    may    be   disposed    of  first   Monday   every 

month 2 

To  be  entered  in  order  book 4 

Circuit  court  may  make  and  alter 89 

Decisions  respecting 89 

High  court  of  chancery,  England,  when  and  how  far  ap- 
plicable    90 

Decisions  respecting 90 

When  to  take  effect 92 

Repeal  former  ones 92 

To  whom  to  be  sent 92 

40lh,  repealed 93 

Rule  days : 

First  Monday  of  every  month 2 

Scandalous  matter  : 

Not  be  inserted  in  bill 26 

Exceptions  for,  referred  to  a  master 26 

When  ordered  to  be  expunged 26 

When  plaintiff  to  pay  costs  for 26 

When  plaintiff  has  costs  on 26 

Exceptions  to,  must  be  in  writing,  and  particular,  or  no  re- 
ference ordered 27 

When  order  of  reference  deemed  abandoned 27 

Sequestration  : 

Writ  of,  to  compel  obedience  to  execution 8 

Writ  of,  to  compel  obedience  to  orders  of  court 7 

Service  : 

When  must  be  personal 4,  7  (n) 

W^hen  may  be  on  solicitor 4 

When  entry  in  "  order  book  "  sufficient 4 

Of  subpoena,  how  made 13 

Of  process,  who  to  make 15 


INDEX.  525 

RCLB. 

Service  (continued)  : 

Of  process,  proof  of 15 

Of  amended  bill,  when  necessary 28 

Signature  of  counsel : 

To  bill,  what  is  understood  by   24 

Decisions  respecting 24 

Solicitor  : 

Notice  to,  when  good 4 

Of  adverse  parties,  living  in  same  place,  time  of  service 

may  be  abridged 4 

Appearance  of  defendant  by 17 

SuBP(ENA  : 

First  mesne  process 7 

Not  to  issue  until  bill  filed 11 

When  returnable 12 

Memorandum  in,  what  to  contain 12 

May  issue  separate  to  each  defendant 12 

To  be  joint  against  husband  and  wife 12 

How  to  be  served 13 

Extraordinary  service  on  agents  ifc 13 

May  issue  toties  quoties 14 

By  whom  to  be  served 15 

Proof  of  service  of 15 

Return  of  as  served,  suit  to  be  entered  in  docket 16 

Suit  : 

When  clerk  to  enter  on  docket  as  pending 16 

When  revived  by  bill  of  revivor 56 

When  revived  by  supplemental  bill 57 

Supplemental  bill  : 

When  proper 57 

Defendant  to  answer  &c 57 

What  need  not  set  forth 5S 


526  INDEX. 

Rule. 

Testimony  : 

Decisions  rcsjjccting 5Qt  58 

Either  party  may  take,  cause  being  at  issue 67 

Commissions  to  take,  how  obtained 67 

When  taken  on  written  or  oral  interrogatories 67 

Statute  cifid  decisions  respecting 67 

When  by  deposition 68 

By  deposition,  when  adverse  party  may  cross-examine  ...  68 

Decisions  respecting 68 

Notice  of  taking,  to  whom  to  he  given 68 

Within  what  time  to  be  taken 69 

When  time  may  be  extended 69 

When  can  not  be  read  on  hearing 69 

Publication  of,  when  may  be  ordered 69 

Publication  of,  when  by  consent 69 

Decisions  respecting 69 

De  bene  esse,  plaintiff  may  take,  before  answer 70 

De  bene  esse,  when  may  be  taken 70 

Form  of  last  interrogatory 71 

How  taken  by  a  master  on  a  reference 77 

Time  : 

Of  notice,  to  show  cause  on  interlocutory  orders,  &c 1 

AVhen  suit  is  deemed  pending 16 

Of  notices  of  orders,  &:c.,  when  may  be  abridged 4 

Of  compliance  with  execution  may  be  enlarged 8 

Within  which  defendant  is  to  appear 17 

Of  filing  plea,  answer  or  demurrer 18 

Of  amendment  of  bills 28,  29 

Of  amendment  of  answers 60 

Within  which  to  take  testimony 69 

Of  rules  going  into  effect 92 

Trustees  : 

May  represent  their  cestui  que  trusts 49 


INDEX.  527 

ROLB. 

Verification  : 

Of  answer,  before  whom  may  be  made 59 

Of  plea,  must  be  made 31 

Of  petition  for  rehearing 88 

Writs  : 

Subpcpna,  when  issues 7 

Attaclmient 7,  8 

Sequestration 7,  8 

Assistance 9 

Witnesses  : 

Examination  of,  under  commission 67 

"  by  deposition 68 

"  de  bene  esse 70 

"  before  a  master 77,  78 

Guilty  of  contempt,  not  appearing  before  a  master 78 


RULKS  OF  PRACTICE 


COURTS   OF  THE   UNITED    STATES 


IN    CAUSES   OF 


ADMIRALTY  AND  MARITIME  JURISDICTION, 


INSTANCE  SIDE  OF  THE  COURT, 


PROMITLOATKD    BY    THE 


SUPREME  COURT  OF  THE  UNITED  STATES, 


IN  PURSUANCE  OF  THE  ACT  OF  1842,    CHAP.  188,  §  6. 


34 


RULES  OF  PRACTICE,  &c. 


Rule  I. 

No  mesne  process  shall  issue  from  the  district    "^"^  ' 
court  in  any  civil  cause  of  admiralty  and  mari-  ^'^^ue 

•'  ''  process 

time  iurisdiction,  until  the  libel  or  libel  of  infor-  notiois- 

•^  sue,  until 

mation  shall  be  filed  in  the  clerk's  office,  from  ''"^^i  'ii^^'- 
which  such  process  is  to  issue.    All  process  shall  i''oc«;ss 

'■  '■  l)y  whom 

be  served  by  the  marshal  or  by  his  deputy,  or  ^"^®, 
where  he  or  they  are  interested,  by  some  discreet 
and  disinterested  person  appointed  by  the  court. 

The  district  courts,  as  courts  of  admiralty,  shall  be  deemed 
always  open  for  the  purpose  of  filing  libels,  bills,  petitions,  an- 
swers, pleas,  and  other  pleadings,  for  issuing  and  retui'ning 
mesne  and  final  process  and  commissions,  and  for  making  and 
directing  all  interlocutory  motions,  orders,  rules  and  other  pro- 
ceedings whatever,  preparatory  to  the  hearing  of  all  causes 
pending  therein  upon  the  merits.  And  it  shall  be  competent 
for  any  judge  of  the  court,  ujuin  roasoniiblo  nolice  to  the  par- 
ties, in  the  clerk's  office,  or  at  chambers,  and  in  vacation  as 
well  as  in  term,  to  nuike  and  direct,  and  award  all  such  pro- 
cess, commissions  and  iiiti-rlocutory  orders,  rules  and  other 
proceedings,  whenever  the  same  are  not  grantable  of  course, 
according  to  the  rules  and  practice  of  the  couit.  Act  1S42, 
ch.  188,  §  5. 


532 


RULES  OF  THE  FEDERAL  COURTS. 


Rri.E  1  As  to  service  of  process  by  marslial,  see  note  to  equity  I'ule 

~         No.  15. 

The  district  judge  is  a  court,  wherever  and  whenever  he 
pleases.  No  notice  to  parties  is  recjuired ;  no  previous  order 
is  necessary.  He  constitutes  a  court  whenever  he  proceeds  on 
judicial  business.  United  States  vs.  Sc/ii\  Charles,  1  Mar.  Dec. 
3S2.     Conk.  Admr.  3G0-365. 

Conkling  defines  a  "Libel  of  Information"  to  be  the  libel 
filed  by  the  district  attorney  of  the  United  States,  who  "gives 
the  court  to  understand  and  he  informed^'  of  the  breach  of  the 
laws  on  which  the  suit  is  founded.  Conk.  Adm.  417,  7i.  But 
he  further  remarks  a  few  pages  later,  that  the  pleading  filed 
by  the  district  attorney,  by  which  the  suit  is  commenced,  when 
the  suit  is  on  the  common  law  side  of  the  court,  is  called  sim- 
ply an  information  ;  and  when  on  the  admiralty  side,  a  libel  of 
information.     Conk.  Adm.  420,  n. 

This  latter  view  is  corroborated  by  Dunlap,  who  speaks  of 
an  inforrmation,  as  a  proceeding  at  common  law,  which  may 
terminate  in  questions  for  a  jury  ;  but  of  a  libel  of  information 
as  a  proceeding  founded  on  the  practice  of  the  civil  law,  and 
in  which  all  the  questions  are  referred  to  the  court.  Dun  Adm. 
2d  ed.  408,  n. 

See  also  Benedict's  Adm.  Prac.  §  372. 

[The  inability  of  the  editor  to  avail  himself  of  the  late  valu- 
able work  of  E.  C.  Benedict,  Esqr.,  on  Admiralty  Jurisdiction, 
until  this  compilation  was  placed  in  the  hands  of  the  printer, 
must  be  the  excuse  for  the  few  and  very  general  references  to 
that  work.] 


KULE  2. 


Mesne 
process  in 


fcrsonam ; 
nature  ot. 


Rule  IL 

In  suits  in  personam,  the  mesne  process  may 
be  by  a  simple  warrant  of  arrest  of  the  person  of 
the  defendant,  in  the  nature  of  a  capias,  or  by  a 
warrant  of  arrest  of  the  person  of  the  defendant, 
with  a  clause  therein,  that  if  he  can  not  be  found, 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  533 

to  attach  his  goods  and  chattels  to  the  amount    ^^^^  '•■ 
sued  for,  or  if  such  property  can  not  be  found,  to 
attach  his  credits  and  effects  to  the  amount  sued 
for  in  the  hands  of  the  garnishees  named  there- 
in ;  or,  by  a  simple  monition,  in  the  nature  of  a  Orbymo- 

'         '      "^  ^  '  _  union. 

summons,  to  appear  and  answer  to  the  suit,  as 
the  libcllant  shall,  in  his  libel  or  information,  pray 
for,  or  elect. 

The  process  of  attachment  may  issue,  wherever  the  defend- 
ant has  concealed  himself,  or  absconded  from  the  country,  and 
the  goods  to  be  attached  are  within  the  jurisdicrion  of  the  ad- 
miralty ;  it  may  be  against  his  goods  and  chattels,  and  his  cre- 
dits and  effects  in  the  hands  of  third  persr^ns ;  it  applies  even 
where  the  same  goods  are  liable  to  the  process  f)f  foreign  attach- 
ment, issuing  from  the  courts  of  common  law;  it  applies  to  the 
case  of  a  piratical  capture,  and  the  civil  remedy  is  not  merged 
in  the  criminal  offence  ;  in  case  of  default,  the  property  attached 
may  be  condemned  to  answer  the  demand  of  the  libellant  ;  the 
property  to  be  attached  need  not  be  specified  in  the  libel  ;  and 
the  attachment  may  issue  simultaneously  with  the  monition, 
though  it  can  not  issue  without  the  express  order  of  the  judge, 
Monro  vs.  AhneiJa,  10  Whea.  473  ;   6  Cond.  190. 

Attachments  may  issue  to  com])el  appearance,  both  in  cases  of 
maritime  torts  and  contracts,  Ibid.  Also  see  McGrath  vs.  Can- 
dalero,  Bee.  64  ;  North  vs.  Brig  EagJe,  Bee.  78  ;  Bonysson  vs. 
Miller,  Bee.  186;  Del.  Col.  vs.  Arnold,  3  Dall.  333;  1  Cond.  150. 

They  may  issue  against  the  goods  or  debts  of  an  absent  per- 
son to  make  him  a  party  to  the  suit.     Bee.  186. 

The  process  is  drawn  and  signed  by  the  clerk,  and  may  be 
tested  of  the  day  on  which  it  is  issued,  and  made  returnable  on 
any  future  day.      Con/,-.  Advi.  473. 

The  attachment  against  the  goods  and  chattels  of  the  defend- 
ant is  the  simple  attachincnt  ;  that  again.->t  his  credits  and  effects 
is  called  -a  foreign  attachment.     Ibid,  478. 


534  RULES  OF  THE  FEDERAL  COURTS. 


Ri  i.E  J.  The  monition  should  be  sei-\'ed  on  the  defendant  personally ; 

when  it  is  made  by  copy,  the  marshal  should  state  the  mode,  and 
will  be  held  valid  or  otherwise  according  to  the  degree  of  pro- 
bability of  its  actual  receipt  by  the  defendant.  Conk.  Adm. 
486-489  ;   Betfs'  Adm.  Prac.  33;   Dun.  Adm.  Pmr. 

See  also  Rule  48,  which  abolishes  imprisonment,  and  there- 
fore arrest  on  process  issuing  out  of  the  admiralty  court  in  all 
cases  where,  by  laws  of  the  different  states,  it  is  abolished  upon 
similar  or  analogous  process  issuing  from  a  state  court. 
See  also  Benedict's  Adm.  Prac.  §§  407,  433. 

Rule  IIL 
RiLK 3.        jj^  oil  suits  in  personam,  where  a  simple  war- 
it.  suits  m  rant  of  arrest  issues  and  is  executed,  the  marshal 

personam  i  ^r»     •  •  /»  xl 

wheuuKu-  may  take  bail,  with  sufficient  sureties,  irom  the 

shal  iiiav  ... 

take  bail,  party  arrested,  by  bond  or  stipulation,  upon  con- 
dition that  he  will  appear  in  the  suit  and  abide 
by  all  orders  of  the  court,  interlocutory  or  final, 
in  the  cause,  and  pay  the  money  awarded  by  the 
final  decree  rendered  therein,  in  the  court  to 
which  the  process  is  returnable,  or  in  any  appel- 
siimmary  late  court.  And  upon  such  bond  or  stipulation, 
bai  bund,  summary  process  oi  execution  may  and  snail  be 
issued  against  the  principal  and  sureties,  by  the 
court  to  which  such  process  is  returnable,  to  en- 
force the  final  decree  so  rendered,  or  upon  appeal, 
by  the  appellate  court. 

By  Rule  48,  passed  at  the  December  term,  18-50,  it  is  pro- 
vided tlial  in  suits  in  perHonam,  bail  shall  be  taken  in  those 
cases  only  in  which  it  is  required  by  the  laws  of  the  state,  where 
an  ariest  is  made  upon  similar  or  analogous  process,  issuing 
from  the  state  courts. 

Tlie  word  "bond,"  in  the  third,  fourth  and  sixth  Rules,  sup- 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  535 

posed  to  mean  the  instrument  known  under  that  appellation  in      '"  '^  •"• 
ihc  connnon  law  courts.      Conic.  Adin.  450-455. 

The  officer  taking  a  IkhhI  or  sli])ulati(>u  is  hound  to  have  re- 
gard to  the  sufficiency  ot"  the  sureties,  who  may  he  sworn,  and 
the  stipulation  is  to  be  returned  to  the  court.  Act  1847,  c/t.  55  ; 
Conk.  Adm.  456. 

And  the  sureties  are  not  relieved  from  their  liability  either 
by  the  surrender  of  their  principal,  or  the  death  of  the  party. 
Conh.  Adm.  458;  citing  2  Bro.  Cir.  and  Ad.  Law,  412;  and 
IlaIVs  Adm.  Prac.  25,  n. 

Such  bonds  or  stipulations  may  be  enforced  summarily  as 
well  against  the  sureties  as  the  principal.  Conk.  Adm.  459, 
774. 

"  Summar>/"  means  ''instantaneous."  Gahics  \s.  Traris,  S 
Legal  Obs.  48. 

See  also.  United  States  Sc?t/:  Little  Charles,  1  Mar.  Dec.  .382. 

The  bond  should  be  generally  taken  in  double  the  sum  for 
which  the  action  is  brought.  In  the  stipulation,  theje  is  usu- 
ally inserted  the  amount  claimed  by  the  libellant,  and  one  hun- 
dred dollars  to  answer  costs.  The  security,  whether  in  one 
form  or  the  other,  is  to  the  libellant  by  name,  and  is  transmitted 
to  the  clerk.      Conk.  Adm.  475,  47G. 

See  also  Rule  48,  as  to  cases  in  which  im])risonment  is  abol- 
ished. 

Previous  to  the  passing  of  Rule  48,  it  had  been  held  by  Judge 
Betts  of  the  district  court  for  the  southern  district  of  New- York, 
that  the  act  of  1841,  abolishing  iijiprisonment  for  debt,  on  pro 
cess  issuing  out  of  the  L^nited  Stales  courts,  in  states  where 
imprisonment  was  abolished  on  process  issuing  out  of  state 
courts,  did  not  apply  to  proceedings  in  courts  of  admiralty. 
Gaines  vs.  Travis,  8  Legal  Obs.  45  ;  Gardner  vs.  Isaacson,  8 
Legal  Obs.  77. 

A  contrary  opinion  had,  however,  been  given  by  Judge  Mc- 
Caleb  of  the  district  court  of  New-Orleans.  United  Sfatr,s  vs. 
Burke  and  ah.  Manuscript,  Jan.  11,  1849. 

See  also  Benedict's  Adm.  Prac.  §§  422,  424,  et  xeq. 


536 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  1 

When  ut- 
tHcbnitMit 
in  perso- 
nam may 
he  dis- 
solved. 


Rule  IV. 

In  all  suits  in  personam,  where  goods  and 
chattels,  or  credits  and  effects  are  attached,  un- 
der such  Avarrant  autliorizing  the  same,  the  at- 
tachment may  he  dissolved,  by  order  of  the  court, 
to  which  the  same  warrant  is  returnable;  upon 
the  defendant,  whose  property  is  so  attached, 
giving  a  bond  or  stipulation,  with  sufficient  sure- 
ties, to  abide  by  all  orders,  interlocutory  or  final, 
of  the  court,  and  pay  the  amount  awarded  by 
the  final  decree  rendered  in  the  court  to  which 
the  process   is   returnable,   or  in  any   appellate 

Summary  ,  i     i  i  •        i       • 

process  on  court ;  aud  upou  such  bond  or  stipulation,  sum- 
mem  mary  process  of  execution  shall  and  may  be  is- 
sued against  the  principal  and  sureties,  by  the 
court  to  which  such  warrant  is  returnable,  to  en- 
force the  final  decree  so  rendered,  or  upon  appeal 
by  the  appellate  court. 

The  "order  of  court"  necessary  to  dissolve  an  attachment 
is  obtainable  only  on  application.  The  application,  however, 
may  be  made  at  any  time,  and  sliould  be  by  peliliou,  briefly 
setting  forth  the  case.  The  application  may  be  also  ex  j>arte. 
The  party  obtaining  the  "order"  must  serve  a  certified  copy 
on  the  marshal,  though  the  better  and  safer  way,  as  well  for 
the  party  and  the  marshal,  would  be  to  sue  out  a  writ  of  su- 
persedeas, in  analogy  to  the  English  practice.  Conk.  Adm. 
484,  485. 

See  also  Act  1847,  ch.  55. 

See  also  Benedict's  Adm.  Prac.  §§  428-434. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  537 


Rtlk  V. 
Bonds  or  stipulations  in  admiralty  suits  may     '^^^'^ 
be  oivcn  and  taken  in  open  court,  or  at  chambers,   J^/i";;^\y""^ 
or  before  any  commissioner  of  the  court  who  is  'i';"«.  ^^y 
authorized  by  the  court  to  take  affidavits  of  bail  '";')•  '•« 
and  depositions  in.  cases  pending  before  the  court. 

This  aiul  the  tliiity-fiflli  nilc  ;in,'  sinular,  ;iii(l  prohal)ly  but 
one  of  them  was  in  fact  intended  to  have  been  promulgated. 
The  last  one  is  much  the  most  complete,  and  includes  all  the 
ground  covered  by  this,  and  therefore  may  be  regarded  as  the 
effective  rule.  This  same  view  has  also  been  taken  by  Judge 
Conkling  in  his  Adm.  Prac.  450-453. 

Rule  VI. 

In  all  suits  in  personam,  where  bail  is  taken,     R"^  ^ 
the  court  may,  upon  motion,  for  due  cause  shown,   wimi  bail 
reduce  the  amount  of  the  sum  contamed  m  the  .educed 

in  I'll  "'  perso- 

bond  or  stipulation  tJiereior;  and  m  all  cases  nam;  or 
where  a  bond  or  stipulation  is  taken  as  bail,  or 
upon  dissolving  an  attachment  of  property  as 
aforesaid,  if  either  of  the  sureties  shall  become 
insolvent  pending  the  suit,  new  sureties  may  be 
required  by  the  order  of  the  court  to  be  given, 
upon  motion  and  due  proof  thereof 

The  practice  prescribed  by  this  rule  is  in  accordance  with 
the  doctrine  laid  down  in  ClarJces  Praxis,  title  15,  16.  See 
also  Conk.  Adm.  457,  458.  Dunlajy's  Adm.  143.  Bctfs'  Adm. 
Prac. 

Though  the  rule  only  provides  for  reducing  bail,  after  it  has 
actually  been  taken,  and  for  requiring  now  security,  for  sub- 
sequent insolvency,  it  is  presumed  it  is  broad  enough  to  reach 


ties  ro 
quired. 


538  RULES  OF  THE  FEDERAL  COURTS. 

ri:le  c.  the  case  of  a  person  imprisoned,  or  held  in  custody  on  a  de- 
mand  of  exorbitant  bail  or  when  insufficient  security  has  been 
taken  through  imposition  or  mistake.      Conk.  Adm.  458. 

Rule  VIL 
RIILE7.        ii^  y^i|s  ii^  personam,  no  warrant   of  arrest, 
Warrant     either  of  the  person  or  property  of  the  defendant, 
ill  perso-     shall  issue  for  a  sum  exceeding  five  hundred  dol- 
uiay  issue,  lars,  uuless  by  the  special  order  of  the  court  upon 
affidavit  or  other  proper  proof  showing  the  pro- 
priety thereof. 

Conk.  Adm.  474,  475.    See  also  Benedict's  Adm.  Prac.  §  415. 

Rule  VIII. 
Rt;LE  8.         jn  all  suits  in  rem  against  a  ship,  her  tackle, 
Suits  ill      sails,  apparel,  furniture,  boats,  or  other  appurte- 
lh\\k        nances,   if  such  tackle,  sails,  apparel,  furniture, 

tackle,  ,  ,  •      xi  • 

&c..  how    boats,  or  other  appurtenances  are  m  the  posession 

obtaiued;  -,  n  ,i   •     i  ^i  4 

possession  or  custody  of  any  third  person,  the  court  may, 
cour.^'"  after  a  due  monition  to  such  third  person,  and  a 
hearing  of  the  cause,  if  any,  why  the  same  should 
not  be  delivered  over,  award  and  decree  that  the 
same  be  delivered  into  the  custody  of  the  marshal 
or  other  proper  olficer,  if  upon  the  hearing,  the 
same  is  required  by  law  and  justice. 

See  Benedict's  Adm.  Prac.  §  440. 

Rule  IX. 
—  In  all  cases  of  sei/.ure,  and  in  other  suits  and 

Sizure,'^     proceedings  in  rem,  the  process,  unless  otherwise 
process  in  pj-Q^ij^j  f^^  }yj  statutc,  shall  bc  by  warrant  of 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  539 

arrest  of  the  ship,  goods,  or  other  thing  to  be  klle  j. 

arrested ;  and  the  marslial  shall  thereupon  arrest  i„„,~^,.. 

and  take  the  ship,  goods,  or  other  tiling  into  his  ^.^eci't'e 

possession  for  safe  custody,  and  shall  cause  pub-  ^^'^,■,^,^1 

lie  notice  thereof,  and  of  the  time  assio^ned  for  the  "•'!''^^  ^" 

'  o  give. 

return  of  such  process  and  the  hearing  of  the 
cause,  to  be  given  in  such  newspaper  within  the 
district  as  the  district  court  shall  order,  and  if 
Ihere  is  no  newspaper  published  therein,  then  in 
such  other  public  places  in  the  district  as  the 
court  shall  direct. 

If  the  property  named  in  the  warrant  is  in  the  custody  of 
the  law  under  process  from  a  state  court,  the  marshal  may  still 
arrest  the  same  property,  by  virtue  of  the  process  in  rem,  and 
supersede  the  possession  of  the  sheriff. 

A  maritime  lien  or  privilege  is  prior  to  any  right  acquired 
by  a  judgment  creditor,  and  the  right  of  any  such  credilf)r  is 
only  to  the  surplus  remaining  after  the  satisfaction  and  liquida- 
tion of  such  prior  lien.  The  Flora,  1  Hagg.  298.  Certain 
logs  of  Mahoganij,  2  Sum.  5S9.  Poland  et  al  vs.  Freight  and 
Cargo  of  Brig  Sj?artan,  1  Ware,  134,  137. 

But  where  persons  have  equal  claims  and  liens  in  rem,  and 
some  proceed  in  the  state  courts,  and  some  in  the  admiralty, 
and  the  district  courts  and  state  courts  have  concurrent  juris- 
diction, the  tribunal  first  exercising  jurisdiction  takes  possession 
of  the  thing.  The  Ship  Robert  Fulton,  1  Paine,  620;  see  also 
Conh.  Adm.  497-505.  What  are  "appurtenances."  The  Dun- 
dec,  1  Hagg.  i09. 

As  to  the  exception,  "unless  otherwise  provided  for  by  statute," 
see  Act  1844,  ch.  8,  directing  summary  proceedings  in  the  case  of 
seizure  of  property  of  a  less  value  than  one  hundred  dollars. 

By  tlie  Revenue  Act  of  1799,  ch.  22,  §  89,  such  notice  must 
be  fourteen  days ;  though  in  private  suits,  it  has  not  been  the 


540  RULES  OF  THE  FEDERAL  COURTS. 

RULEO.      practice  of  posting  the  notice  "near  the  place  of  trial,"  that  is, 
on  or  near  the  court  house  door.     See  also,  Conic.  Adm.  489-496. 

Rule  X. 
RULE  10.        In  all  cases  where  any  goods  or  other  things 

Perisha-     arc  arrcstcd,  if  the  same  are  perishable,  or  are  lia- 
ble goods, 

how  may    ble  to  deterioration,  decay,  or  injury,   by  being 

be  sold ;         1  .         ,     .  ,  T  1  •         1 

detained  in  custody,  pending  the  suit,  the  court 
may,  upon  the  application  of  either  party,  in  its 
discretion,  order  the  same,  or  so  much  thereof,  to 
be  sold,  as  shall  be  perishable  or  liable  to  depre- 
ciation, decay,  or  injury,  and  the  proceeds,  or  so 
much  thereof  as  shall  be  a  full  security  to  satisfy 
in  decree  to  be  brought  into  court,  to  abide  the 
or  may  I  e  cveut  of  tlic  sult ;  or  tlic  court  may,  upon  the  ap- 
to  claim-    pHcatiou  of  the  claimant,  order  a  delivery  thereof 
hisglvh"'   to  him  upon  a  due  appraisement  to  be  had  under 
tion"  ^       its  direction,  either  upon  the  claimant's  depositing 
in  court  so  much  money  as  the  court  shall  order, 
or  upon  his  giving  a  stipulation  with  sureties,  in 
such  sum  as  the  court  shall  direct,  to  abide  by, 
and  pay  the  money  awarded  by  the  final  decree 
rendered  by  the  court  or  the  appellate  court,  if 
any  appeal  intervenes,  as  the  one  or  the  other 
course  shall  be  ordered  by  the  court. 

Whether  this  rule  applies  to  any  other  than  perishable  pro- 
perty. Qucre  ?  Conk.  Adm.  442,  n.  It  does  not  apply  to 
vessels,  as  they  are  provided  for  by  the  following  rule. 

Either  ])arly  may  make  the  application  ;  and  when  the  op- 
posite parly  is  not  in  court,  the  application  should  be  on  rea- 
sonable notice,     Conh.  Adm.  485. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  541 


A  judge  in    vacation    nuiy   exercise   the   same   power    and     m  '■':  1<J- 
authority  in  relation  to  the  matters  referred  to  in  the   above 
rule,  as  the  court  has  in  tonn  time.     Act  1832,  c7i.  6G  ;   (4  Stat, 
at  Large,  503). 

The  court  will  exercise  such  power  in  case  of  collision.  The 
Si/Ira?i,  2  Hagg.  155. 

It  is  the  undisputed  right  of  the  court  of  admiralty  to  order 
the  sale  of  property  in  its  possession,  which  is  in  a  perishable 
condition.  The  right  to  order  a  sale  is  for  the  benefit  of  all 
parties,  and  docs  not  depend  upon  the  fact  that  the  case  is  be- 
fore the  court,  but  upon  the  liability  of  the  subject  matter  to 
perish  while  in  its  custody,  and  while  neither  party  can  enjoy 
its  use.  It  exists,  therefore,  as  well  after  as  before  an  appeal. 
The  property  does  not  follow  the  appeal,  but  still  remains  in 
the  custody  of  the  court  where  it  was  libelled.  Jennings  vs. 
Carson,  4  Cra.  2 ;  2  Cond.  2.  N.  B.  This  case  was  under  the 
old  admiralty  system. 

See  2Vic  Collector,  6  Wliea.  194 ;   5  Cond.  G2. 

See  also  Benedict's  Adm.  Prac.  §  445. 

Rule  XL 
In  like  manner,  where  any  ship  sliall  be  ar-    i^^'ie  h. 
rested,  the  same  may,  upon  the  appUcation  of  ship. 

when  may 

the  claimant,  be  delivered  to  him  upon  a  due  ap-  bedeiiv- 
praisement  to  be  had  under  the  direction  of  the  daimaut; 
court,  upon  the  claimant's  depositing  in  court  so 
much  money  as  the  court  shall  order,  or  upon 
his  giving  a  stipulation  with  sureties  as  afore- 
said ;  and  if  the  claimant  shall  decline  any  such  or  wI.pm 

will  be 

application,  then  the  court  may,  in  its  discretion,  sold. 
upon  the  application  of  either  party,  upon  due 
cause  shown,  order  a  sale  of  such  ship,  and  the 
proceeds  thereof  to  be  brought  into  court,  or  oth- 


542 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  11 


RULE  12. 

Suits  l)y 

material 

men, 

against 

whom  and 

what. 


erwise  disposed  of  as  it  may  deem  most  for  the 
benefit  of  all  concerned. 

This  rule  is  nearly  the  same  as  the  act  of  1847,  ch.  55,  which 
see. 

Where  the  owner  has  a  ship  delivered  up  to  him  upon  an 
appraisement,  and  he  gives  a  stipulation  according  to  the  course 
of  admiralty  proceedings,  to  refund  that  value,  together  with 
damages,  interest  and  costs,  to  the  court,  he  is  not  at  liberty  to 
insist  afterwards  that  the  ship  is  of  less  than  that  value  in  his 
hands,  or  that  he  has  discharged  other  liens  diminishing  the 
value  for  which  the  owners  were  personally  liable  in  soUdo  in 
the  first  instance.      The  Virgin,  8  Pet.  538. 

See  also,  ConJ^.  Adm.  442-449. 

See  also  Benedict's  Adm.  Prac.  §  447. 

Rule  XIL 
In  all  suits  by  material  men  for  supplies  or  re- 
pairs, or  other  necessaries  for  a  foreign  ship,  or 
for  a  ship  in  a  foreign  port,  the  libellant  may  pro- 
ceed against  the  ship  and  freight  in  rem,  or 
against  the  master  or  the  owner  alone  in  perso- 
nam. And  the  like  proceeding  in  rem  shall  ap- 
ply to  cases  of  domestic  ships,  where  by  the  local 
law  a  lien  is  given  to  material  men  for  supplies, 
repairs,  or  other  necessaries. 


The  admiralty  possesses  a  general  jurisdiction  in  cases  of 
suits  by  material  men,  both  in  personam  and  in  rem.  The  Ge- 
neral Smith,  4  Whea.  438 ;  4  Cond.  493.  The  Rohert  Fulton, 
1  Paine,  620.      The  New  Jersey,  1  Adm.  Dec.  223. 

Such  claim  is  preferred  to  that  of  the  governmc^nt,  arising 
on  forfeiture,  or  on  judgment.  The  St.  Jago  de  Cuba,  9  Whea. 
409  ;    5  Cond.  631.      Philips  vs.  Ship   Thomas  Scatterwood, 


DISTRCIT  COURTS  IN  ADMIRALTY  CASES.  543 

Gilpin,   1.     See  Jilso    The  Barque   Chusan,  2  Sto.  Ar>(>.      The     RII.k  i,' 
Jerusalem,  2  Gall.  345. 

In  tlio  United  States  this  claim  (^xists  only  in  cases  of  foiciiru 
ships,  or  ships  of  one  state  furnished  in  another.  La?iexs.  Brig 
President,  4  Wash.  4o3.  The  Levi  Dearborn,  4  Hall's  Am.  L. 
.Tour.  88.  The  Robert  Fulton,  1  Paine,  G20.  The  Aurora,  1 
Whea.  105;   3  Cond.  501.      The  Nestor,  1  Sum.  73. 

But  such  a  lien  may  exist  in  a  home  port,  if  the  ship  has 
been  falsely  represented  by  her  owners  as  a  foreign  ship.  The 
St.  Jngo  de  Cuba,  9  Whea.  409 ;  5  Cond.  631 ;  and  where 
a  lien  is  given  by  the  local  law ;  The  General  Smith,  4  Whea. 
438;  4  Cond  493.  Pnjroux  vs.  Hoicard,  7  Pet.  324.  The 
Jerusalem,  2  Gall.  345.  The  Fvlton,  1  Paine,  620.  A  New 
Brig,  (lilpin,  473. 

But  if  tlie  material  man  has  given  an  exclusive  per,sonal 
credit  to  the  master,  he  can  not  afterwards  resort  to  the  ship. 
The  Nestor,  1  Sum.  73. 

See  also  as  regards  material  men,  Rainsaij  vs.  Allcgre,  12 
WTiea.  611  ;  6  Cond.  667.  Pritchard  vs.  Lady  Horatio,  Bee* 
167.  -S///>  Fortitude,  Cir.  Ct.  Boston,  1838.  Brig  Sjmrtan, 
Ware,  149  Shejmrd  vs.  Taylor,  5  Pet.  675.  Schooner  Ma- 
rion, 1  Sto.  68. 

Rule  XIII. 

In  all  suits  for  mariners'  wages,  the  libellant  ^^'^■'^  ^^• 

may  proceed  against  the  ship,  freight,  and  mas-  Suits  for 

tor,  or  against  the  ship  and  freight,  or  against  the  against 

whom  aud 

owner  or  master  alone  in  personam.  what. 

Over  the  subject  of  seamen's  wages,  the  admiralty  has  an 
undisputed  jurisdiction,  in  rem  as  well  as  in  personam  ;  and 
whert'ver  the  lien  exists  and  attaches  upon  the  proceeds,  it  is 
the  familiar  practice  of  the  court  to  exercise  its  jurisdiction  by 
way  (»f  monition  to  the  parties  holding  the  proceeds.  Shephard 
vs.  Taylor,  5  Pet.  675  ;  Pitman  vs.  Hooper,  3  Sum.  50. 

Seamen  have  a  fourfold  remcdv  for  the  recovery  of  their 


544  RULES  OF  THE  FEDERAL  COURTS. 

RULE  13.  wages,  against  the  ship,  against  the  master,  against  the  owner, 
and  against  the  freight.  Abb.  on  SJiijh  ed.  1846,  781 ;  Bronde 
vs.  Haven,  Gilpin,  592;  ShcjyJiard  vs.  Taylor,  5  Pet.  675; 
Broicn  vs.  LuU,  2  Sum.  443 ;  Pitman  vs.  Hooper,  3  Sum.  50. 

The  lien  will  follow  the  ship  and  proceeds  into  whose  hands 
soever  they  may  come,  and  takes  priority  of  all  other  claims. 
Brown  vs.  Lull,  2  Sum.  443  ;  Lewis  vs.  I'he  Elizabeth  and 
Jane,  7  Amer.  Jur.  30  ;  TJic  St.  Jago  de  Cuba,  9  Whea.  409  ; 
6  Cond.  631;  Kent  Com.  3d  ed.  197;  The  Manj,  1  Paine,  180; 
The  Eastern  Star,  Ware,  185. 

But  the  lien  does  not  exist  when  the  voyage  is  illegal.  Brig 
Landon  Cheeves,  2  Mason,  58  ;  The  St.  Jago  de  Cuba,  9  Whea. 
409;  6  Cond.  631;  The  Vanguard,  6  Rob.  207 ;  The  Lean- 
der,  Edw.  35. 

The  court  has  no  jurisdiction  except  where  the  service  is 
substantially  performed  on  the  sea  ;  but  the  commencement  or 
termination  of  the  voyage  may  be  beyond  the  reach  of  the  tide. 
The  Thomas  Jefferson,  10  Whea.  428 ;  6  Cond.  173 ;  The 
Steamboat  Orleans,  11  Pet.  175. 

See  also,  The  Sydney  Cone,  2  Dod.  14. 

Each  seaman  may  sue  separately.  Oliver  et.  al.  vs.  Alexan- 
der et.  al.,  6  Pet.  143. 

Mariners,  include  the  officers  and  seamen,  surgeons,  carpen- 
ters, coopers,  stewards,  cooks,  women  as  well  as  men,  the  pilot, 
deck  hands,  engineer  and  firemen,  but  not  musicians.  The 
service  rendered  must  pertain  to  navigation.  Conic.  Adm.  71, 
72. 

See  also,  as  to  wages,  above  cases,  and  'Philips  vs.  The 
Thomas  Scattergood,  Gilpin  1  ;  L'Arina  vs.  The  Exchange, 
Bee.  198;  L'Arina  vs.  Manwa?  ing.  Bee.  199;  Hainmond  ws. 
Essex,  F.  and  M.  Ins.  Co.,  4  Mason  196  ;  Bronde  vs.  Haven  Gil. 
592;  and  generally  Curtis  Ad?n.  Dig.  26-31  and  508-525; 
and  Conk.  Adm.  71-123;  Kent's  Com.  6th  ed.  1,  379;  3d, 
186-198, 

See  also,  Act  1790,  ch.  29  ;  Act  1803,  ch.  9  ;  Act  1813,  ch.  2  ; 
Act  1840,  ch.  23. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  545 

Rule  XIV. 
In  all  suits  for  pilotage,  the  libcllant  may  pro-    ^ivle^xa. 
coed  arainst  the  ship  and  master,  or  against  the  Sni's  for 

~  pilotage 

ship,  or  against  the  owner  alone,  or  the  master  against 

whum  and 

alone,  in  personam.  what. 

Suits  for  pilotage  on  the  high  seas,  and  on  waters  navigable 
from  the  sea,  as  far  as  the  ebb  and  flow  of  the  tide,  are  within 
the  admiralty  and  maritime  jurisdiction  of  the  United  States. 
The  Atme,  1  Mas.  508.  Hobart  vs.  Drogan,  10  Pet.  108. 
Ilyer  vs.  Schr.  Wave,  7  Leg.  Obs.  97. 

If  such  a  service  is  performed  on  the  inland  waters  of  the 
United  States,  an  action  would  also  probably  lie,  under  the  act 
extending  admiralty  jurisdiction  upon  the  lakes  and  the  waters 
connecting  the  same.     Act  1845,  ch.  20. 

No  action  lies  for  piloting  a  foreign  vessel  into  an  enemy's 
port.      The  Benjamin  Franklin,  6  Rob.  350. 

See  also  Act  1789,  ch.  9,  §  4.  Act  1837,  ch.  22.  Conh.  Adm. 
226,  232.  Curtis'  Adm.  Dig.,  lit.  Pilotage.  Kent's  Com.  vol. 
3,  p.  176,  n.     Dun.  Adm.  2d  ed.  51. 

Rule  XV. 
In  all  suits  for  damage  by  collision,  the  libel-    R^le  15. 
lant  may  proceed  against  the  ship  and  master,  Suits  for 

_  coliisiou, 

or  against  the  ship  alone,  or  against  the  master  against 

whom  and 

or  the  owner  alone,  in  personam.  what. 

In  cases  of  collision,  happening  upon  the  high  seas,  or  within 
the  ebb  and  flow  of  the  tide,  as  far  up  a  river  as  the  tide  ebbs 
and  flows,  though  it  may  be  iTifra  corpus  co?nitatus,  courts  of 
admiralty  of  the  United  States  have  jurisdiction.  Waring  vs. 
Clarh,  5  Howard,  441.     Conh.  Adm.  21.     Dun.  Adm.  2d  ed.  51. 

The  jurisdiction  has  been  asserted  when  damage  has  hap- 
pened to  a  vessel  lying  at  a  wharf.  Livingston  vs.  The  Ex- 
35 


546 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  15.  2^rcss,  6  Legal  Obs.  401.  See  also  cases  in  same  court,  (South. 
Dist.  New  York.)  Nangatuch  Nav.  Co.  vs.  St?u.  Bt.  Rhode 
Island,  Ibid.  12 ;  and  Wells  vs.  The  Bay  State,  Ibid.  198. 

As  to  the  liability  for  damages,  see  The  Leopard,  Davies 
193.  Peters  vs.  Warren  Insurance  Company,  1  Law.  Rep.  281. 
Lowry  vs.  Steamhoat  Portland,  Ibid.  313.  Clapp  vs.  Young, 
6  Law.  Rep.  111.  Rogers  vs.  Brig  Rival,  9  Law.  Rep.  28. 
The  Sciota,  1  Law.  Rep.  N.  S.  16.  Hale  vs.  Washington  Ins. 
Compa7iy,  2  Sto.  176.     Smith  vs.  Condry,  1  How.  28. 

The  burden  of  proof  lies  on  the  libel! ant.  Conk.  Adm.  303. 
The  Catharine  of  Dover,  2  Hagg.  145. 

Crews  of  the  vessels  concerned  are  admitted  as  witnesses, 
ex  necessitate  rei,  Ibid.  The  Celt,  3  Hagg.  321 ;  and  see  The 
Betsey  Caines,  2  Hagg.  28. 

See  also  generally  Kent's  Com.  vol.  3,  p.  230,  302,  n.  Conk. 
Adm.  298-312.  Dun.  Ad?7i.  32,  51,  265.  Cur.  Adm.  Dig.  tit. 
Collision. 


RULE  16. 

Suits  for 

assaalt 

&c., 

against 

whom. 


Rule  XVI. 

In  all  suits  for  an  assault  or  beating  on  the 
high  seas,  or  elsewhere  within  the  admiralty  and 
maritime  jurisdiction,  the  suit  shall  be  in  perso- 
nam only. 

Courts  of  the  United  States,  proceeding  in  admiralty,  have 
jurisdiction  in  cases  of  marine  torts,  in  personam  and  in  rem. 
Manro  vs.  Almeida,  10  Whea.  473 ;  6  Cond.  190,  citing  Maley 
vs.  Shattuch,  3  Cra.  458 ;  1  Cond.  597  :  Murray  vs.  Charming 
Betsy,  2  Cra.  64  ;  1  Cond.  358  :  The  Apollon,  9  Whea.  362  ; 
5  Cond.  612.  Conk.  Adm.  312.  Dun.  Adm.  49.  Such  torts 
however  must  be  committed  on  the  high  seas,  or  within  the 
ebb  and  flow  of  the  tide.      Thomas  vs.  Lane,  2  Sum.  1. 

Of  torts  committed  by  the  master  on  a  passenger.  Cham- 
berlain vs.  Chandler,  3  Mason,  242.  The  Ruckers,  4  Rob.  73. 
Roberts  vs.  Dallas,  Bee.  239.  See  also  Plummer  vs.  Webb,  4 
Mason,  380.      The  Betsey  Caines,  2  Hagg.  28,  and  n. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  547 


See  also  Conk.  Adm.  312-334.     Dun.  Adm.  49,  50,     Cur.  rlle  ic 

Adin.  Dii!.  tit.  Turts.     Ad  1835,  ch.  40,  — 

Rule  XVII. 

In  all  suits  against  the  ship  or  freight  founded  Rur.c  17. 

upon  a  mere  maritime  hypothecation,  either  ex-  suits  for 
press  or  implied,  of  the  master,  for  moneys  taken 


cation 

up  in  a  foreign  port,  for  supplies,  or  repairs,  or  Nvi'iat  and 


wliuui. 


other  necessaries  for  the  voyage,  without  any 
claim  of  marine  interest,  the  libellant  may  pro- 
ceed either  in  rem  or  against  the  master  or  the 
owner  alone  in  personam. 

To  constitute  a  right  to  liypotliccate  the  ship,  there  must  be 
an  urgent  necessity.  O'Hara  vs.  SJiip  Mary,  Bee  102.  Lie- 
bart  vs.  Ship  Emperor,  Bee.  339.  Turnhull  vs.  Ship  Entcr- 
prize.  Bee,  345.  Forbes  vs.  Brig  Hannah,  Bee.  348.  The 
Aurora,  1  Whea.  96  ;  3  Cond.  501.  Sloan  vs.  McMillan, 
Bee.  250. 

The  different  states  are  foreign  states.  Selden  v.  Hendrick- 
son,  1  Mar.  Dec.  396. 

Hypothecation  can  not  be  to  a  consignee.     Bee.  339. 

See  also,  Patton  vs.  The  Randolph,  Gilpin,  457.  Hurry  vs. 
Sliip  John  Sf  Alice,  1  Wash.  293,  Crauford  vs.  The  William 
Penn,  3  Wash.  484, 

Rule  XVIII, 

In  all  suits  on  bottomry  bonds,  properly  so  f^i'iE  is 

called,  the  suit  shall  be  in  rem  only  against  the  Suits  on 

property   hypothecated,  or  the   proceeds  of  the  CndT^ 

property  in  whosesoever  hands  the  same  may  be  nv/Tami 

found,  unless  the  master  has  without  authority  p™Jl 
given  the  bottomry  bond,  or  by  his  fraud  or  mis- 


548  RULES  OF  THE  FEDERAL  COURTS. 

RULE18.  conduct  has  avoided  the  same,  or  has  subtracted 
the  property,  or  unless  the  owner  has  by  his  own 
misconduct  or  wrong,  lost  or  subtracted  the  pro- 
perty, in  Avhich  latter  cases  the  suit  may  be  in 
personam  against  the  wrong  doer. 

The  admiralty  jiirisdiclion  lias  always  been  regarded  as  in- 
cluding suits  on  bottomry  bonds.  Siory^s  Com.,  vol.  3,  §  1665; 
The  Aurora,  1  Whea.  96;  3  Cond.  501;  The  Mary,  1  Paine, 
671 ;   Conk.  Adm.  14 ;  Dun.  Adm.  28,  29. 

Bottomry  bond  can  not  be  enforced  in  a  court  of  prize.  The 
Mary,  9  Cra,  126 ;  3  Cond.  306. 

It  gives  no  indefeasable  right  to  the  ship,  but  only  a  claim, 
w^hich  may  be  enforced.  Blaine  vs.  Charles  Carter,  4  Cra. 
328;  2  Cond.  127. 

A  bond,  given  to  pay  off  a  former  bond,  must  stand  or  fall 
with  the  first  hypothecation.  The  Aurora,  1  Whea.  96 ;  3 
Cond.  501. 

A  bottomry  bond  preferred  to  any  claim,  except  wages.  The 
Charles  Carter,  4  Cra.  328 ;  2  Cond.  127.  See  The  Virgin,  8 
Pet.  538. 

May  be  good  in  part,  and  bad  in  j^art.  The  Virgin,  8  Pet. 
538  ;    The  Packet,  3  Mason,  255. 

Premium  may  be  moderated  and  reduced.  Ship  Packet,  3 
Mason,  255 ;    The  Cognac,  2  Hogg.  377. 

May  be  made  in  a  foreign  or  home  poit.  The  Draco,  2 
Sum.  157  ;   contra,  Turnhull  vs.  The  Enterjmze,  Bee.  345. 

The  burden  of  proof  rests  on  the  libellant.  Cravford  vs.  T?ie 
William  Penn,  3  Wash.  484. 

The  bond  last  given  entitled  to  priority  of  payment.  The 
Betsy,  1  Dod.  289. 

See  also,  Ship  Fortitude,  1  Law  Rep.  124,  S.  C;  3  Sum. 
228 ;  The  Jerusalem,  2  Gall.  1 00,  and  cases  cited  in  note  on 
page  191;  Cnr.  Adm.  Dig.,  title  Bottomry,  and  Cotik.  Adm. 
194-226  ;   Brig  Draco,  2  Sum.  157. 


DISTRICT  COURTS  IN  ADMIKAI/JY  CASES.  549 

Rule  XTX. 

In  all  suits  for  salvage,  the  suit  may  be  in  rem  nui.n  lo. 

against  the  property  saved,  or  the  proceeds  there-  Suiis  for 

of,  or  in  personam  against  the  party  at  whose  re-  wheirm 

quest  and  for  whose  benefit  the  salvage  service  wheitw 

11  f  1  personam. 

has  been  periormcd. 

Admiralty  jurisdiction  may  be  exercised  in  cases  of  salvage, 
as  well  in  j^f^sonam  as  in  rem.  The  Schooner  Boston,  1  Sum. 
328;  TJie  Scliooner  Emnlons,  1  Sum.  207;  Brccrort  \s.  The 
Fair  A?nerican,  1  Pet.  Adm.  Dec.  87  ;  The  Hope,  3  Rob.  215  ; 
The  Trclau-ny,  Ibid,  note;  Conk.  Adm.  21,  273  ;  House7nan\s. 
Schr.  North  Carolina,  15  Pet.  40  ;  McDonough  vs.  Dannery, 
3Dall.  188;   1  Cond.  94. 

Seamen  may  become  entitled  to  salvage.  Hohart  vs.  Dro- 
gan,  10  Pet.  108. 

As  may  the  pilot.     Hand  vs.  The  Elvira,  Gilpin,  60. 

On  what  principles  regulated.  The  Emulous,  1  Sum.  207. 
See  Talhot  vs.  Seeman,  1  Cra.  1  ;   1  Cond.  229. 

Rates  of  salvage.  Pcisch  vs.  Ware,  4  Cra.  347 ;  2  Cond. 
137  ;  The  Emulous,  1  Sum.  207  ;  Ti/son  vs.  Prior,  1  Gall.  133  ; 
Hand  vs.  The  Elvira,  Gilpin,  60  ;  'The  Henri/  Ewbank,  1  Sum. 
400 ;  Hindry  vs.  The  Brisccilla,  Bee.  1. 

See  further  Cur.  Adm.  Dig.,  tit.  Salvage,  and  Conk.  Trea. 
273-298;    The  Nathaniel  Hooper,  2  Law  Rep.  133. 

Rule  XX. 

In  all  petitory  or  possessory  suits  between  part  rule  20. 

owners  or  adverse  proprietors,  or  by  the  owners  j„  ~ito- 

of  a  ship  or  the  majorily  thereof  against  the  mas-  |7,ss"L- 

ter  of  a  ship,  for  the  ascertainment  of  tlie  title  'J^^^^f^l' 

and  delivery  of  the  possession,  or  for  the  posses-  "^'"'^'^"f- 
sion  only,  or  by  one  or  more  part  owners  against 


550 


RULES  OF  THE  FEDERAL  COURTS. 


Rll 


Jf^^-  the  others  to  obtain  security  for  the  return  of  the 
ship  from  any  A^oyage  undertaken  without  their 
consent,  or  by  one  or  more  part  owners  against 
the  others  to  obtain  possession  of  the  ship  for  any 
voyage  upon  giving  security  for  the  safe  return 
thereof,  the  process  shall  be  by  an  arrest  of  the 
ship  and  by  a  monition  to  the  adverse  party  or 
parties  to  appear  and  make  answer  to  the  suit. 

Suits  in  the  admiralty,  touching  the  property  in  ships,  arc  of 
two  kinds,  one  called  petitory  suits,  in  which  the  mere  title 
to  the  pi'operty  is  litigated,  and  sought  to  be  enforced,  inde- 
pendently of  any  possession,  which  has  previously  accompanied 
or  sanctioned  that  title  ;  the  other  called  j)osscssorij  suits,  which 
seek  to  restore  to  the  owner  the  possession,  of  which  he  has 
been  unjustly  deprived,  when  that  possession  has  followed  a 
legal  title,  or  as  it  has  been  sometimes  phrased,  when  there  has 
been  a  possession  under  a  claim  of  title  with  a  constat  of  pro- 
perty. 2  Browne's  Civ.  and  Adm.  Laiv,  113,  114,  117,  118, 
397,  406,  430. 

This  distinction  between  petitory  and  possessory  suits,  in 
point  of  jurisdiction,  has  never  been  admitted  into  the  actual 
practice  of  the  courts  of  the  United  States.  The  Tiiton,  5  Ma- 
son, 465. 

See  also,  Conk  Ad?n.  260-273  ;    Cur.  Adm.  Dig.  377,378. 


RULE  21. 

Decrees, 
when  en- 
forced by 

attach- 
ment or 
execution, 
and  when 
by  attach- 
ment 
alone. 


Rule  XXL 

In  all  cases  where  the  decree  is  for  the  pay- 
ment of  money,  the  libellant  may,  at  his  election, 
have  an  attachment  to  compel  the  defendant  to 
perform  the  decree,  or  a  writ  of  execution  in  the 
nature  of  a  capias  and  of  a  fieri  facias,  command- 
ing the  marshal  or  his  deputy  to  levy  the  amount 
thereof  of  the  goods  and  chattels  of  the  defend- 


DISTRICT  COURTS  IN  ADMIRALTY  CASES. 


551 


ant,  and  for  want  thereof  to  arrest  his  body  to  ^^^2.' 
answer  the  exigency  of  the  execution.  In  all 
other  cases  the  decrees  may  he  enforced  by  an 
attachment  to  compel  the  defendant  to  perform 
the  decree;  and  upon  such  attachment  the  de- 
fendant may  he  arrested  and  committed  to  prison 
until  he  performs  the  decree,  or  is  otherwise  dis- 
charged by  law,  or  by  the  order  of  the  court. 

This  rule  may  be  regarded  as  extending  to  suits  in  rem,  as 
well  as  in  personam  ;  and  as  applying  to  the  sureties  of  a  de- 
fendant, as  well  as  to  the  defendant  himself;  and  probably  as 
making  the  lands  of  the  defendant  and  his  sureties  no  longer 
subject  to  the  admiralty  process  of  execution.  Conk.  Adm. 
112-115. 


Rule  XXII. 

All  informations  and  libels  of  information  upon 
seizures  for  any  breach  of  the  revenue  or  naviga- 
tion or  other  laws  of  the  United  States,  shall  state 
the  place  of  seizure,  whether  it  be  on  land,  or  on 
the  high  seas,  or  on  navigable  waters  within  the 
admiralty  and  maritime  jurisdiction  of  the  United 
States ;  and  the  district  within  which  the  proper- 
ty is  brought,  and  where  it  then  is.  The  informa- 
tion or  libel  of  information  shall  also  propound 
in  distinct  articles  the  matters  relied  on  as  grounds 
or  causes  of  forfeiture,  and  aver  the  same  to  be 
contrary  to  the  form  of  the  statute  or  statutes  of 
the  United  States  in  such  case  provided,  as  the 
case  may  require,  and  shall  conclude  with  a 
prayer  of  due  process  to  enforce  the  forfeiture  and 


RULE  22. 

Informa- 
tions and 
libels  ou 
seizures, 
what  to 
state. 


To  pro- 
pound 
grounds 
of  for- 
feiture ; 
and  have 
prayer  for 
process. 


552  RULES  OF  THE  FEDERAL  COURTS. 


RULE  22.  ^Q  giyp  notice  to  all  persons  concerned  in  inter- 
est to  appear  and  show  cause  at  the  return  day 
of  the  process  why  the  forfeiture  should  not  be 
decreed. 

The  courts  of  the  United  States  have  exclusive  cognizance  of 
questions  of  forfeiture  upon  all  seizures  under  the  laws  of  the 
United  States.  Gelston  vs.  Hoyt,  3  Whea.  346  ;  4  Cond.  244. 
Slocum  vs.  Mayhernj,  2  Whea.  1 ;   4  Cond.  1. 

In  cases  of  seizures  made  on  land  under  the  revenue  law^s, 
the  district  court  proceeds  as  a  court  of  common  law,  accord- 
ing to  the  course  of  the  exchequer  on  informations  in  rem,  and 
the  trial  of  issues  of  fact  is  to  be  by  a  jury ;  but  in  cases  of 
seizures  on  waters  navigable  from  the  sea.  it  proceeds  as  an 
instance  court  of  admiralty,  by  libel,  and  the  trial  is  to  be  by 
the  court. 

The  two  jurisdictions  and  the  proceedings  under  them,  are 
to  be  kept  entirely  distinct.  The  SaraJi,  8  Whea.  391  ;  5 
Cond.  472. 

Musi  state  the  place  of  seizure.  The  Sarah,  8  Whea.  391 ; 
5  Cond.  472. 

An  information  for  a  statute  forfeiture  should  conclude  con- 
tra forman  statuti,  or  at  least  refer  to  some  statute  authorizing 
the  forfeiture.  The  Larh,  1  Gall.  ^)5.  The  Nancy,  Ibid.  67.. 
Schooner  Hoppet  vs.  United  States,  7  Cra.  389  ;  2  Cond.  542 
Brig  Caroline  vs.  United  States,  7  Cra.  496;  2  Cond.  584. 
Contra,  The  Merino,  9  Whea.  391 ;  5  Cond.  623  ;  and  sec  Sears 
vs.  United  States,  1  Gall.  257.    Smith  vs.  United  States,  Ibid.  261. 

In  general  it  is  sufficient  to  describe  the  offence  in  the  words 
of  the  statute.  The  Samuel,  1  Whea.  9  ;  3  Cond.  466.  The 
Mary  Ann,  8  Whea.  380 ;  5  Cond.  471.  The  Emily  ^  Caro- 
line, 9  Whea.  381 ;  5  Cond.  623.  Cross  vs.  United  States,  1 
Gall.  31.  Dun.  Adm.  2d  ed.  117.  The  Palmyra,  12  Whea. 
1 ;  6  Cond.  397. 

But  must  specially  aver  all  the  facts  which  constitute  the  of- 
fence.   Schr.  Anne,  vs.  United  States,  7  Cra.  570  ;  2  Cond.  611. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  553 

Informations  in  rem  arc  not  criminal,  but  civil  proccedinf^s     Riii.E  '>i. 
of  the  admiralty  and  maritime  jurisdiction.     Anon.  1  Gall.  22. 

Rule  XXIIT. 
All  libels  in  instance  causes,  civil  or  maritime,    rule  2:1. 
shall  state  the  nature  of  the  cause;  as  for  exam-  Lii.^in 
pie,  that  it  is  a  cause  civil  and  maritime,  of  con-  cause!!!^ 
tract,  or  of  tort  or  damage,  or  of  salvage,  or  of  g^^fe/" 
possession  or  otherwise,  as  the  case  may  be  ;  and 
if  the  libel  be  in  rem,  that  the  property  is  within 
the  district;  and  if  in  personam,  the  names  and 
occupations  and  places  of  residence  of  the  parties. 
The  libel  shall  also  propound  and  articulate  in  dis- 
tinct articles  the  various  allegations  of  fact,  upon  pound  ai- 
which  the  libcllant  relies  in  support  of  his  suit,  so  iciiedoii! 
that  the  defendant  may  be  enabled  to  answer  dis- 
tinctly and   separately  the  several  matters  con- 
tained in  each  article  ;  and  it  shall  conclude  with 
a  prayer  of  the  process  to  enforce  his  rights  in 
rem,  or  in  personam,  (as  the  case  may  require) 
and  for  such  relief  and  redress  as  the  court  is 
competent   to  give   in  the   premises.     And   the  May  re- 
libcllant  may  farther  require  the   defendant   to  sw.rou 
answer  on  oath  all  interrogatories  propounded  by 
him  touching  all  and  singular  the  allegations  in 
the  libel  at  the  close  or  conclusion  thereof 

It  is  not  necessary,  nor  tlic  general  practice,  to  have  the 
lihcl  sworn  to,  though  there  is  no  objection  to  such  a  course  if 
the  libellant  chooses.  Cmik.  Adm.  424  ;  Hutson  \s.  Jordan,  IS 
Amer.  Jur.  295  ;   Coffin  vs.  Jm/cins,  3  Story,  109,  121. 

But  the  debt  or  cause  of  action  on  which  the  libel  is  founded. 


554         RULES  OF  THE  FEDERAL  COURTS. 

RILE  23.  must  be  verified,  Hutso7i\s.  Jordan,  18  Amer.  Jur.  295  ;  S.  C, 
~~         Ware,  385,  392. 

Affidavit  may  be  made  by  the  agent  or  attorney  of  the  party, 
when  party  is  necessarily  absent.  Hutsmi  vs.  Jordan,  Wai-e, 
392.     Sec  also,  Schr.  Adeline,  9  Cra.  244  ;  3  Cond.  397. 

The  libellant  may  unite  in  one  suit  as  many  actions  of  a  like 
nature  as  he  pleases ;  subject,  however,  to  the  discretionary 
power  of  the  court  to  strike  out  such  actions,  when  the  privi- 
leo^e  has  been  unreasonably  and  oppressively  used.  Conk. 
Adm.  377. 

The  doctrine  asserted  in  Dunlap,  (pp.  88,  89)  that  in  suits  in 
personam,  all  causes  of  admiralty  cognizance  existing  between 
the  same  parties,  whether  founded  on  contract  or  tort,  may  be 
joined  in  the  libel  and  stated  in  distinct  articles,  combatted  and 
repudiated,  in  part  by  Ware,  district  judge.  Pratt -vs.  Thomas 
Ware,  427,  437. 

It  is  irregular  to  allow  in  a  libel,  in  rem  and  quasi,  for  posses- 
sion, the  introduction  of  other  matters  of  an  entirely  different 
character,  as  an  account  of  the  vessel's  earnings,  or  the  claim 
of  a  part  owner  for  wages  and  advances.  Stm.  Bt.  Orleans  vs. 
PJioehus,  11  Pet.  175. 

Separate  and  distinct  trespasses  can  not  be  joined  in  the  same 
libel  against  defendants  not  jointly  liable.  Thomas  vs.  Lane, 
2  Sum.  1. 

Generally,  proceedings  in  rem  and  in  personam  can  not  be 
joined  in  one  libel.  Citizens''  Bank  vs.  Nantucket  Steamboat 
Company,  2  Story,  17. 

But  as  to  when  such  a  joinder  will  be  allowed  see  Rules  13, 
14,  15,  and  Conk.  Adm,.  382-388,  and  cases  there  cited. 

As  to  libels  generally,  and  their  requisites,  and  their  conclu- 
sions, see  Conk.  Adm.  417-426;  Dun.  Adm..  116-132;  Rich- 
ard Sears  vs.  United  States,  1  Gall.  257  ;  Joseph  Smith  vs.  United 
States,  1  (iall.  260. 

Libels  must  be  signed  by  the  proctor  of  the  libellant.  Conk. 
Adm.  426.     Bctts'  Adm.  22. 

The  form  of  the  libel  is  varied  according  to  the  customs  of 
different  courts. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  555 


It  should,  however,  contain  a  narration  and  conclusion,  to  he  RtiLE  -a. 
short,  and  contain  nothing  superfluous;  char,  so  as  to  avoid  all 
ambiguity ;  apt,  i.  e.  that  the  prayer  for  relief  should  accord 
with  the  nature  of  the  grievance,  and  sufliciently  certain  as  to 
tlie  quantity,  quality  and  nature  of  the  subject  matter.  2  Tiro. 
Civ.  and  Adtn.  Laio,  3G1. 

There  are  five  substantial  requisites  which  it  should  contain  : 

1.  The  name,  and  description  or  addition,  of  the  plaintiff. 

2.  The  name,  and  description  or  addition,  of  the  defendant. 

3.  The  name  of  the  judge,  with  a  respectful  designation  of 
his  office  and  court. 

4.  The  thing  or  relief,  general  or  special,  which  is  demand- 
ed in  the  suit. 

5.  The  grounds  upon  which  the  suit  is  founded,  or  as  the 
following  distich  has  it : 

Quis,  quid,  coram  quo,  quo  jure  petatur,  et  a  quo, 
Recte  compositus  quiscjue  libellus  habet. 

Clcr/ce's  Praxis.     Dun.  Adiu.  112.      Conk.  Adm.  809. 

Libel  need  not  state  matters  of  defence.  Brig  Aurora,  7  Cra. 
382  ;  2  Cond.  540. 

Sec  also,  in  reference  to  the  statement  of  the  nature  of  the 
cause,  in  the  libel.  The  Schr.  Adeline,  9  Cra.  244;  3  Cond. 
397  ;  Orne  vs.  Tow?iscnd,  4  Mason,  541  ;  The  Schr.  Boston,  1 
Sum.  329. 

The  allegations  in  a  libel,  not  admitted  or  denied,  must  be 
proved.     Brig  Dodge  Heal y,  4  Wash.  65  L 

As  to  evidence,  see  The  Schr.  Boston,  1  Sum.  329  ;  The 
William  Harris,  Ware,  367. 

See  also  Benedict's  Adm.  Prac.  §§  399,  402. 

Rule  XXIV. 

In  all  informations  and  libols  in  causes  of  ad-    r,.i,k  n. 
miralty  and  maritime  jurisdiction,  amendments  a,„~^. 
in  matters  of  form  may  be  made  at  anv  time  "r"/\!° 
on  motion  to  the  court  as  of  course.     And  new  "*■<=«""«; 


556 


RULES  OF  THE  FEDERAL  COURTS. 


terms  im 
posed  oil 
libellant. 


RULE  21.  counts  may  be  filed  and  amendments  in  matters 
ou  moiiuii;  of  substance  may  be  made  upon  motion  at  any 
time  before  tlie  final  decree,  upon  such  terms  as 
the  court  shall  impose.  And  where  any  defect  of 
form  is  set  down  by  the  defendant  upon  special 
exceptions,  and  is  allowed,  the  court  may,  in 
granting  leave  to  amend,  impose  terms  upon  the 
libellant. 

Where  an  application  to  the  court  is  necessary  for  the  al- 
lowance of  amendments,  a  copy  of  the  proposed  amendments 
should  be  served  on  the  proctor  of  the  opposite  party,  with  a 
notice  of  the  time  of  applying  to  the  court  to  grant  an  order 
for  their  allowance.     Conk.  Adm.  617.     Belts'  Adm.  58. 

Amendments  of  informations  in  personam  are  now  con- 
sidered so  much  a  matter  of  coui'se,  that  they  are  even  made 
on  an  application  to  a  judge  at  chambers.     Ibid.  23. 

An  amendment  can  not  introduce  a  new  subject  of  contro- 
versy.    Houseman  vs.  (SVZr.  North  Carolina,  15  Pet.  40. 

Where  merits  appear  on  the  record,  it  is  the  settled  prac- 
tice, not  to  discuss  the  libel,  but  to  allow  the  jiai-ty  to  assert 
his  rights  by  a  new  allegation.  Schr.  Adeline,  9  Cra.  244 ;  3 
Cond.  397.     Crauford  vs.  The  WiUiam  Penn,  3  Wash.  484. 

For  statutory  enactment,  and  further  references  in  respect 
to  amendments,  see  "  Powers  in  Common,"  title  Amendments. 

See  also  Benedict's  Adm.  Prac.  §  483. 


RULE  25. 

In  liVjels 

in  pn-sn- 
nam.  de- 
fendant to 
j^ive  secu- 
rity for 
costs. 
when. 


Rule  XXV. 

In  all  cases  of  libels  in  personam  the  court  may, 
in  its  discretion,  upon  the  appearance  of  the  de- 
fendant, where  no  bail  has  been  taken,  and  no 
attachment  of  property  has  been  made  to  answer 
the  exigency  of  the  suit,  require  the  defendant  to 
give  a  stipulation  with  sureties  in  such  sum  as 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  557 


the  court  sliall  direct,  to  pay  all  costs  and  ex-    R11K25. 
penses,  which  shall  be  awarded  against  him  in 
the  suit  upon  the  final  adjudication  thereof,  or  by 
any  interlocutory  order  in  the  process  of  the  suit. 

This  rule  provides  for  the  case  of  a  vohiiitary  appearance 
of  the  (lefeiidant ;  and  probably  to  the  case  of  a  defendant 
arrested,  and  held  in  custody  for  want  of  bail  and  brought  into 
court  on  the  return  of  process.      Conk.  Adin.  43S,  439. 

It  is  supposed  the  court  may  annex  to  the  stipulation  the 
further  condition  of  abiding  all  interlocutory  orders  and  the 
final  judgment  of  the  court.     Ibid.  440. 

According  to  the  English  practice  Uhellants  are  not  required 
to  give  security  for  costs,  except  when  they  are  non-residents. 
The  Sophie,  1  W.  Rob.  32G.  The  Volant,  Ibid.  383.  See 
also  The  Minerva,  Ibid.  169,  172. 

In  the  United  States  the  practice  seems  to  be  regulated  ac- 
cording to  the  rules  of  the  various  district  courts.  But  a  mo- 
tion for  such  security  will  bo  denied,  when  its  effect  would  be 
a  denial  of  justice.     Polijdorc  \&.  Prince,  Ware,  402. 

The  other  party  may  waive  the  security,  and  if  the  party 
can  not  find  sureties,  his  jui'atory  caution  may  be  taken  in- 
stead.    Ibid. 

Seamen  are  never  required  to  give  such  a  stipulation.  Ibid' 
403. 

Conk.  Adm.  463-472. 

Rule  XXVI. 

In  suits  in  rem,  the  party  claiming  the  property    rule  2c. 
shall  verify  his  claim  on  oath  or  solemn  affirma- 
tion, stating  that  the  claimant,  by  whom  or  on 
whose  behalf  the  claim  is  made,  is  the  true  and  '''''^• 
bona  fide  owner,  and  that  no  other  person  is  the 
owner  thereof     And  where  the  claim  is  put  in  oath  by 
by  an  agent  or  consignee,  he  shall  also  make  oath  ''°^°^* 


In  suits  ill 
rem.  claim 
to  be  veri- 


558  RULES  OF  THE  FEDERAL  COURTS. 

RILE  2G.    that  he  is  duly  autliorized  thereto  by  the  owner, 
Claimant    or  if  the  property  be  at  the  time  of  the  arrest  in 

to  give  . 

security     possession  of  a  master  of  the  ship,  that  he  is  the 

fur  cosis. 

lawful  bailee  thereof  for  the  owner.  And  upon 
putting  in  such  claim,  the  claimant  shall  file  a 
stipulation  with  sureties  in  such  sum  as  the  court 
shall  direct,  for  the  payment  of  all  costs  and  ex- 
penses which  shall  be  awarded  against  him  by 
the  final  decree  of  the  court,  or  upon  an  appeal 
by  the  appellate  court. 

Claims  in  the  prize  court  should  be  made  by  the  parties 
themselves,  if  within  the  jurisdiction,  and  not  by  mere  agents. 
The  Schooner  Lively,  1  Gall.  315.  The  Schooner  Sally,  1 
Gall.  400.      The  Schooner  Adeline,  9  Cra.  244 ;  3  Cond.  397. 

If  the  claim  be  made  by  an  agent,  the  agent  must  make  oath 
as  to  his  belief  of  the  verity  of  the  claim,  and  if  necessary 
produce  proof  of  his  authority,  before  he  can  be  admitted  to 
put  in  the  claim.  United  States  vs.  422  Casks  of  Wine,  1  Pet. 
547,  549.     Houseman  vs.  Schir.  North  Carolina,  1 5  Pet.  40. 

A  consul  may  make  a  claim  in  behalf  of  the  subjects  of  his 
country.  The  Bello  Corrunes,  6  Whea.  152 ;  6  Con.  45.  The 
Anne,  3  Whea.  435 ;  4  Cond.  286.  The  Antelope,  10  Whea. 
66 ;  6  Cond.  30.  The  London  Packet,  1  Mason,  14.  Gernon 
vs.  Cochran,  Bee.  209,  but  without  special  authority  he  can  not 
receive  actual  restitution.  The  Bello  Corrunes,  6  Whea.  152 ; 
6  Cond.  45.  The  Antelope,  10  Whea.  60;  6  Cond.  30.  An 
underwriter  can  not  make  a  claim.      The  Packet,  3  Mas.  255. 

A  claimant  must  have  an  interest  in  the  property  in  a  legal 
and  technical  sense.      The  Boston,  1  Sum.  328,  333. 

In  instance  causes  the  answer  of  the  claimant  should  be  ve- 
rified by  his  oath.     Gammel  vs.  Skinner,  2  Gall.  45. 

The  affidavit  of  the  claimant  is  not  evidence;  it  is  only  "  the 
exclusion  of  a  conclusion."  The  Thomas  and  Henry  vs.  Uni- 
ted States,  1  Mar.  Dec.  367. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  559 


See  also,  Stratton  vs.  Jarvis,  8  Pet.  4  ;    The  Amiable  Isabella,     rile  a;. 
6  Whea  1 ;  C>  Coiul.  1 ;    TJie    Venus,  5  Wliea.   127 ;  4   Cond.         ~ 
613  ;    T/ie  Dos  Heniumos,   2   Wliea.   7G  ;   4   Cond.  39  ;    Cm/,: 
Adin.  440,  540-550.  See  also  BenedicCs  Adm.Prac.  §§  461,  463. 

Rule  XXVII. 

Ill  all  libels  in  causes  of  civil  and  maritime    rule  27. 
jurisdiction,  whether  in  rem  or  in  personam,  the  Answer  of 
answer  of  the  defendant  to  the  allegations  in  the  to  beVu" 
libel  shall  be  oil  oath  or  solemn  affirmation ;  and  °^^  ' 
the  answer  shall  be  full  and  explicit  and  distinct  to  be  fuii 

,  •    1  1  n  •  •^'"^  expli- 

to  each  separate  article  and  separate  allegation  cn. 
in  the  libel,  in  the  same  order  as  numbered  in 
the  libel ;  and  shall  also  answer  in  like  manner 
each  interrogatory  propounded  at  the  close  of  the 
libel. 

This  rule  does  not  apply  to  cases  where  the  sum  in  dispute 
does  not  exceed  fifty  dollars,  unless  the  court  are  of  the  opin- 
ion that  such  proceedings  are  necessary  for  the  purposes  of 
justice  in  any  such  case  before  it.  Rule  80,  passed  at  Decem- 
ber term,  1850. 

If  a  respondent  wishes  to  avail  himself  of  any  particular 
matter  in  defence,  he  must  present  it  with  proper  averments 
in  his  answer,  or  by  plea.      The  William  Harris,  Ware,  367. 

The  answer  must  be  verified  by  oath  of  the  respondent. 
Cojin  vs.  Jenkins,  3  Story,  109.  Hutsm  vs.  Jordan,  Ware,  385. 
Gammcll  vs.  Skinner,  2  Gall.  46  ;  and  signed  by  his  proctor. 
Cank.  Adm.  426. 

General  replication  is  not  required.     Conk.  Adm.  593. 

Protracted  pleadings  may  be  made  use  of,  but  they  are  rare  ; 
when  used  they  take  the  names  which  they  bear  at  common 
law.     Conk.  Adm.  5G5.     The  Lord  Cochrane,  2  Rob.  320. 

The  degree  of  credit  to  be  allowed  an  answer  must  depend 
on  the  apparent  good  faith  with  which  it  is  made ;   and  is  not 


560  RULES  OF  THE  FEDERAL  COURTS. 

RULE  27.     measured  by  any  technical  rule  as  in  equity.     The  Crusader, 
~         Ware,  437,  443. 

It  is  a  matter,  that  can  only  be  referred  to  the  sound  discre- 
tion and  conscience  of  the  tribunal,  which  has  the  cause  to 
decide.  Hutson  vs.  Jordan,  Ware,  385,  394.  But  when  the 
libellant  requires  the  answer  to  be  under  oath,  it  is  evidence. 
Randull  vs.  Philips,  3  Mas.  378.  The  Rambler,  Bee.  9.  Jay 
vs.  Abnj/,  1  Wood.  &  Min.  262. 

No  special  replication  is  admissible,  unless  the  respondent 
requires  the  libellant  to  give  an  answer  on  oath  ;  and  then  it  is 
in  the  nature  of  a  cross-bill,  or  revocatio  of  the  civil  law.  Cof- 
Jin  vs.  Jenkins,  3  Story,  108,  121.  But  see  Waring  vs.  Clar/c, 
5  How.  441,  where  there  was  "an  amended  or  supplemental 
libel,"  and  "an  amended  or  supplemental  answer." 

Double  pleading  is  not  allowed,  or  necessary.  2  Bro.  Civ. 
and  Adm.  Law,  415. 

The  answer  is  the  most  important  pleading  on  the  part  of 
the  defendant.  The  commencement  should  contain  a  descrip- 
tion of  the  court,  the  names  of  the  paities,  and  of  the  proctor 
for  the  defendant,  and  tlie  date  of  the  answer  ;  and  it  should  be 
respectfully  addressed  to  the  judge  of  the  court,  by  his  name, 
and  with  the  addition  of  a  description  of  his  office. 

It  ought  to  be  pertinent  to  the  matter  in  question. 

It  ought  to  be  absolute  and  unconditional. 

It  ought  to  be  clear  and  certain. 

Like  the  libel,  it  should  be  free  from  impertinence,  scandal, 
vulgarity  and  profanity.  All  allegations  in  respect  to  offensive 
subjects  should  be  in  general  terms,  that  the  records  of  the 
court  may  not  be  stained  with  disgusting  statements.  Dun. 
Adm.  201-202. 

See  also,  Wilson  vs.  Graham,  4  Wash.  53  ;  Conk  Adm.  564- 
606  ;  Dun.  Adm.  198,  et  seq. 

See  also  Benedicts  Adm.  Prac.  §  472. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  561 

Rule  XX\  III. 
The  libellant  may  except  to  the  sufficiency  or    kulkss. 
fulhiess  or  distinctness  or  relevancy  of  the  answer  Libeiiam 
to  the  articles  and  interrogatories  in  the  libel;  ^ep^tto 
and  if  the  court  shall  adjudge  the  same  excep-  ^"*^*''' 
tions,  or  any  of  them,  to  be  good  and  valid,  the 
court   shall   order   the   defendant   forthwith,    or 
within  such  time  as  the  court  shall  direct,  to  an- 
swer the  same,  and  may  further  order  the  defend- 
ant to  pay  such  costs  as  the  court  shall  adjudge 
reasonable.  • 


defendant, 
when  to 
answer 
over. 


The  substitution  of  an  amended  libel  or  answer  in  place  of 
a  replication  and  rejoinder,  and  other  pleadings,  was  frequently- 
urged  by  Mr.  Justice  Story  during  his  life  time.  The  Sarah 
Ann,  2  Sum.  20G,  208.  Coffin  vs.  Jen/cins,  3  Story,  108,  121. 
But  such  a  substitution  is  not  required  by  the  rules  in  admiralty. 

Exceptions  arc  j^crpctual  or  temporary ;  perpetual  when  they 
are  founded  on  objections  in  matters  of  substance,  which  de- 
stroy the  libellant's  right  of  action,  and  which  constitute  a  com- 
plete bar ;  temporary  when  they  are  merely  of  a  formal  char- 
acter, and  operate  to  occasion  only  delay  or  postponement.  2 
Bro.  Civ.  and  Adm.  Law,  362,  363. 

See  also  Conk.  Adm.  589  et  scq.  Dun.  Adm.  193.  Ben.  Adm. 
Prac.  §§  466,  470. 

Rule  XXIX. 
If  the  defendant  shall  omit  or  refuse  to  make    rule  29. 
due  answer  to  the  libel  upon  the  return  day  of  Defiant 
the  process  or  other  day  assigned  by  the  court,  "vveHng 
the  court  shall  pronounce  him  to  be  in  contuma-  pro  coi^*° 
cy  and  default,  and  thereupon  the  libel  shall  be  ^^"°' 
adjudged  to  be  taken  pro  confesso  against  him, 

36 


562  RULES  OF  THE  FEDERAL  COURTS. 


RULE  29.    and  the  court  shall  proceed  to  hear  the  cause  ex 
parte,  and  adjudge  therein  as  to  law  and  justice 

Default  shall  appertain.  But  the  court  may,  in  its  dis- 
may beset  ^^  1  1  T 
agide.  crctiou,  sct  asidc  the  default,  and  upon  the  appli- 
cation of  the  defendant,  admit  him  to  make 
answer  to  the  libel,  at  any  time  before  the  final 
hearing  and  decree,  upon  his  payment  of  all  the 
costs  of  the  suit  up  to  the  time  of  granting  leave 
therefor. 

Only  one  order  is  necessary  for  the  default,  and  for  taking 
the  libel  pro  confesso,  and  such  order  may  also  include  a  refer- 
ence, if  necessai'y.     Conk.  Adm.  518. 

The  party  may,  however,  compel  an  answer  by  attachment, 
if  he  prefer.     Dun.  Adm.  206. 

Answers  intended  merely  to  cause  delay,  or  to  defeat  the 
ends  of  justice  are  not  considered  answers.     Ihid.  204. 

For  form  of  order  pro  confesso,  see  Co7ih.  Adm.  519,  n. 

The  application  to  vacate  the  order  ^;ro  confesso  may  be 
made  on  petition.  It  is  addressed  to  the  discretion  of  the 
court,  and  is  not  grantable  as  of  course.     Conk.  Adm.  521,  522. 

Before  the  defendant  can  be  heard  in  his  defence, 'or  intro- 
duce evidence  he  must  appear  and  contest  the  suit  either  by 
exceptions  to  the  libel,  or  by  answering  it.  If  he  does  neither 
the  court  will  proceed  ex  parte.     The  David  Fratt,  Ware,  495. 

But  if  the  defendant  has  neglected  to  put  in  his  answer 
through  ignorance  of  the  practice  of  the  court,  and  is  absent 
at  the  time  of  hearing,  the  court  is  not  precluded  from  receiving 
any  evidence  which  his  counsel  may  offer  as  amicus  curice.   Ibid* 

The  court  is  not  bound  to  defer  the  "final  hearing  and  de- 
cree" out  of  any  indulgence  to  the  defendant,  but  may  pro- 
ceed, without  delay  to  the  actual  entry  of  the  decree.  But  in 
practice  the  final  decree  is  withheld  for  a  few  days.  Conk. 
Adm.  521.  See  also  Conk.  Adm.  517-537  and  rule  40 ;  and 
Benedict's  Adm.  Prac.  §  450. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  563 

Rule  XXX. 
In  all  cases  where  the  defendant  answers,  but    i^^'^e  3° 
does  not  answer  fully  and  explicitly  and  distinctly  D.iendaut 

when 

to  all  the  matters  in  any  article  of  the  libel,  and  r.  .iuir.-.i 
exception  is  taken  thereto  by  the  libellant,  and  luniie. 

1  •         •        11  1      1  1  1        auswer. 

the  exception  is  allowed,  the  court  may,  by  attach- 
ment, compel  the  defendant  to  make  further 
answer  thereto,  or  may  direct  the  matter  of  the 
exception  to  be  taken  pro  confesso  against  the 
defendant  to  the  full  purport  and  effect  of  the  ar- 
ticle to  which  it  purports  to  answer,  and  as  if  no 
answer  had  been  put  in  thereto. 

If  the  tlcfentlant  refuse  to  make  further  answer,  his  confes- 
sion is  called  a  presumptive  confession,  as  confessing  those 
things  to  which  he  refuses  to  answer  fully.     Dun.  Adm.  204. 

The  court  should  not,  however,  pronounce  generally  for  the 
confession,  hut  s})ccify  the  articles,  or  the  portions  of  them, 
not  fully  answered,  to  which  the  presumptive  confession  ap- 
plies.    Ibid.  204. 

The  costs  in  such  cases  must  he  defrayed  hy  the  party  from 
whose  neglect  or  fault  the  proceeding  has  been  rendered  neces- 
sary, or  has  been  taken.     Ibid.  204. 

See  also  Benedict's  Adm.  Prac.  §  471. 

Rule  XXXI. 

The  defendant  may  object  by  his  answer  to  rule  si. 
answer  any  allegation  or  interrogatory  contained 
in  the  libel  which  will  expose  him  to  any  j^rose- 
cution  or  punishment  for  a  crime,  or  for  any  j^en- 
alty  or  any  forfeiture  of  his  property  for  any 
penal  offence. 


Wliat  alle- 
gations 
ili-fi'iulant 
need  not 
answer. 


564 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  31.  An  oath  can  not  be  required  when  the  party  might  be  com- 

pelled thereby  to  charge  himself,  or  confess  or  purge  himself 
of  any  crime  or  breach  of  any  penal  law.     Dun.  Adm.  207. 

A  man  is  not  obliged  to  discover  what  may  subject  him  to  a 
penalty,  nor  what  must  only.  United  States  vs.  28  Packages, 
Gilpin,  306,  313.     Ben.  Adm.  Prac.  §  476. 


RULE  32, 

Defendant 
may  re- 
quire an- 
swer of 
the  libel- 
lant  to 
interroga- 
tories ; 


on  default 
of  same, 
libel  may 
be  dis- 
missed 


Rule  XXXII. 
The  defendant  shall  have  a  right  to  require  the 
personal  answer  of  the  libellant  upon  oath  or 
solemn  affirmation  to  any  interrogatories  which 
he  may,  at  the  close  of  his  answer,  propound  to 
the  libellant  touching  any  matters  charged  in  the 
libel,  or  touching  any  matter  of  defence  set  up  in 
the  answer,  subject  to  the  like  except'on  as  to 
matters  which  shall  expose  the  libellant  to  any 
prosecution  or  punishment  or  forfeiture,  as  is  pro- 
vided in  the  31st  Rule.  In  default  of  due  answer 
by  the  libellant  to  such  interrogatories,  the  court 
may  adjudge  the  libellant  to  be  in  default,  and 
dismiss  the  libel,  or  may  compel  his  answer  in 
the  premises  by  attachment,  or  take  the  subject 
matter  of  the  interrogatory  pro  confesso  in  favour 
of  the  defendant,  as  the  court  in  its  discretion 
shall  deem  most  fit  to  promote  public  justice. 

Each  party  in  the  admiralty  has  a  right  to  require  the  per- 
sonal answers  of  the  other  party,  under  oath,  to  any  interrog- 
atories touching  the  matter  in  issue.  The  David  Pratt,  Ware, 
495.     Gamviel  vs.  Skinner,  2  Gall.  4G.     Dnn.  Adm.  129. 

And  such  a  demand  may  be  made  at  any  time,  even  down 
to  the  hearing.  2  Bro.  Civ.  and  Adm.  Law,  416.  ClerJce's 
Praxis,  Tit.  14.     Ben.  Adm.  Prac.  §§  477,  479. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  555 

Ut/le  XXXIII. 
Where  either  the  libeHant  or  the  defendnnt  is    rile  33 
out  of  the  country,  or  unable  from  sickness   or  Answer 
otlier  casualty  to  make  an  answer  to  any  interro-  ""111" 
gatory  on  oath  or  solemn  afhrmation  at  the  proper  wa'iTcd  or 
time,  the   court  may,  in   its  discretion,  in    fur-  di'/icoln- 
therance  of  the   due  administration  of  justice,  °""'"°- 
dispense  therewith,  or  may  award  a  commission 
to  take  the  answer  of  the  defendant,  when  and 
as  soon  as  it  may  be  practicable. 

Tlie  oalli  is  sometimes  taken  in  court,  but  more  generally 
before  the  clerk  of"  the  district  court,  or  one  of  the  commis- 
sioners of  the  projjcr  court  ( f  the  United  States.  Dun.  Adm. 
2d  ed.  192,  449,  /i.     See  also  Ben.  Adm.  Prac.  §  4S1. 

Rule  XXXIV. 
Jf  any  third  person  shall  intervene  in  any  cause    ^^'^-^  ^^ 
of  admiralty  and  nuiritime  jurisdiction  in  rem,   interve- 
for  his  own  interest,  and  he  is  entitled  Recording  may  come 
to  the  course  of  admiralty  proceedings  to  be  heard 
for  his  own  interest  therein,  he  shall  propound 
the  matter  in  suitable  allegations,  to  which,  if 
admitted  by  the  court,  the  other  party  or  parties 
in  the  suit  may  be  required  by  order  of  the  court, 
to  make  due  answer,  and  such  further  proceed- 
ings shall  be  had,  and  decree  rendered  by  the 
court  therein,  as  to  law  and  justice  shall  apper- 
tain.    But  every  such  intervenor  shall  be  required   '^"  ^\''^ 

•'  1  sti|)iila- 

upon  filirjg  his  allegations  to  give  astipulation  """ '"i: 
with  sureties  to  abide  by  the  final  decree  rendered 


566 


RULES  OF  THE  FEDERAL  COURTS. 


RULE^i.  jj^  ijjg  cause,  and  to  pay  all  such  costs  and  ex- 
penses, and  damages,  as  shall  be  awarded  by  the 
court  upon  the  final  decree,  whether  it  is  rendered 
in  the  original  or  appellate  court. 

According  to  the  English  practice,  all  persons  having  liens 
or  claims  against  the  property  proceeded  against,  which  are 
In  their  nature  cognizahle  in  a  principal  suit  in  the  admiralty, 
are  entitled  to  intervene  for  their  interest;  but  general  credit- 
ors can  not  intervene.  Conk.  Adm.  553,  citing  The  Tobago, 
5  Rob.  221 ;  The  Marianna,  6  Rob.  24;  The  Portsea,  2  Hagg- 
84  ;  The  Exmouth,  Ibid.  88,  n;  The  Fruit  Preserver,  Ibid.  181 ; 
The  Prince  George,  3  Hagg,  178;  The  Neptune,  Ibid.  129; 
The  Perseij,  Ibid.  402  ;  The  Maitland,  2  Hagg.  255  ;  The  Flo- 
ra, 1  Hagg.  298 ;  The  John,  3  Rob.  288 ;  The  Dawthorpe,  2 
W.  Rob.  73  ;    The  Fortitude,  Ibid.  217. 

In  the  United  States  it  seems  to  be  the  rule,  that  all  persons 
having  an  interest  in  the  thing  may  intervene  ^ro  interesse  suo, 
file  their  claims,  and  make  themselves  parties  to  defend  their 
own  interest.      The  Mary  Anne,  Ware,  104,  106. 

The  right  of  intervention  and  defence  may  be  regarded  as 
coextensive  with  that  of  intervention,  against  remaining  pro- 
ceeds, under  rule  43,  as  such  right  is  defined  in  Ilarpcv  vs. 
The  New  Srig,  Gilpin,  536. 

See  Conk  Adm.  549-562  referring  to  pages  38-51 ;  and  Bene- 
dict's Adm.  Prac.  §§  460,  465. 

Rule  XXXV. 

RULE  33.        Stipulations  in  admiralty  and  maritime  suits 

stipuia-      may  be  taken  in  open  court,  or  by  the  proper 

fire  whom  judge   at  chambcrs,   or  under  his  order  by  any 

takeu!''      commissioner  of  the  court,  who  is  a  standing 

commissioner  of  the  court,  and  is  now  by  law 

authorized  to  take  affiidavits  of  bail  and  also  de- 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  567 


positions  in  civil  causes  pending  in  the  courts  of   ^^^^ 
the  United  States. 

When  a  commissioner  takes  a  stipulation,  he  should  trans- 
mit it  to  the  court,  hut  he  may  do  so  hy  the  heads  of  the  mar- 
shal.    Con/c.  Adm.  47G. 

Stipulations  taken  in  the  progress  of  a  cause  are  taken  un- 
der the  order  of  the  court,  or  of  the  law.  And  they  are  to  be 
interpreted  according  to  the  intention  of  the  court,  or  the  law, 
and  not  according  to  the  intention  of  the  party.  Lane  vs. 
Tozcnsend,  Ware,  286,  292,  293. 

A  stipulation,  in  its  terms  and  meaning  pointing  exclusively 
to  a  remedy  for  one  object  of  complaint,  can  not  be  made  a 
peg  on  which  to  hang  a  jurisdiction  for  other  purposes.  The 
Apollo,  Ilagg.  306. 

Practice  of  the  admiralty  in  regard  to  stipulations.  Lane 
vs.  Townsend,  Ware,  286. 

Words  "affidavits  of  haiV^  supposed  to  mean  acknowledg- 
ments of  bail  and  affidavits.     Conk.  Adm.  450. 

See  Ibid.  450-455,  and  rule  5  and  notes  to  same. 

Rule  XXXVI. 

Exception  may  be  taken  to  any  libel,  allega-  ^^^^ 

tion,  or  answer,  for  surplusage,  irrelevancy,  im-  ^,^,^g?"i, 

pertinence,  or  scandal ;  and  if  upon  reference  to  ^l^'^fg^^to 

a  master,  the  exception  shall  be  reported  to  be  'j'^'^x- 

'  ^  ^  puuged. 

so  objectionable,  and  allowed  by  the  court,  the 
matter  shall  be  expunged  at  the  cost  and  expense 
of  the  party  in  whose  libel  or  answer  the  same  is 
found. 

See  Benedict's  Adm.  Prac.  §§  466,  470. 

Rule  XXXVII.  rule  37 

In  cases  of  foreign  attachment,  the  garnishee  Garnishee 
shall  be  required  to  answer  on  oath  or  solemn  ouoath; 


568 


RULES  OF  THE  FEDERAL  COURTS. 


RULB  37.  affirmation,  as  to  the  debts,  credits,  or  effects  of 
the  defendant  in  his  hands,  and  to  such  interro- 
gatories touching  the  same  as  may  be  propounded 
^Jy"!;/'  by  the  libellant ;  and  if  he  shall  refuse  or  neglect 
arreated.  g^  ^^  ^^^  ^|^g  court  may  award  compulsory  process 
in  personam  against  him.  If  he  admit  any  debts 
credits,  or  effects,  the  same  shall  be  held  in  his 
hands  liable  to  answer  the  exigency  of  the  suit. 

Foreign  attachment  is  the  process  against  the  credits  and  ef- 
fects of  the  defendants  in  the  hands  of  third  persons,  as  distin- 
guished from  simple  attacJiment,  which  is  a  process  against  his 
own  goods  and  chattels.      Conk.  Adm.  478,  n.  (a.) 

The  writ  of  attachment  and  foreign  attachment  do  not  issue 
until  after  a  return,  upon  a  warrant  of  arrest  in  j)crsonam,  that 
the  defendant  can  not  be  found.     Dun.  Adm.  139. 

They  are  served  by  delivering  to  tne  defendant,  and  to  the 
alleged  trustees,  attested  copies  of  the  process,  or  by  leaving 
Buch  copies  at  their  usual  places  of  residence,  with  some  suit- 
able person.     Dun.  Adm.  139.     Conk.  Adm.  481. 

The  process  of  attachment  may  issue  though  the  same  goods 
may  be  liable  to  process  of  foreign  attachment  issuing  from 
the  courts  of  common  law.  And  the  properly  to  be  attached, 
need  not  be  specified  in  the  libel.  Munro  vs.  TIlc  Almeida,  10 
Whea.  473  ;  C  Cond.  190. 

It  is  no  ground  for  dismissing  a  foreign  attachment  that  the 
plaintiff  had  sued  out  another  attachment  against  the  defend- 
ant in  a  state  court,  and  afterwards  discontinued  it.  Fisher 
vs.  Consequa,  2  Wash.  328.  See  also  British  Consul  vs.  Thomp- 
son, Ware,  141,  cited  in  10  Whea.  473.  Bouijsson  vs.  Miller, 
Ware,  186. 

The  term  "credits"  embraces  all  debts  owing  to  the  defend- 
ant. The  term  "effects"  refers  to  properly  not  strictly  falling 
within  ihc  scope  of  the  terms  "goods  and  chattels"  and  "cre- 
dits," such  as  shares  in  stock  of  companies,  money  in  the 
hands  of  a  sheriff  or  agent,  or  the  like.     Conk.  Adm.  481. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  569 


l)n>uj,'lit 
iuto  court. 


But  money   in  tin;  liands  of  a  purser  is  not   alta(lial»l(! ;    for     rli.e  37. 
such  money  is  in  tlic  hands  of"  the  government,      Ihirhmian  vs. 
Alexander,  4  How.  20. 

The  return  clay  of  the  process  is  llie  proper  time  for  tlic 
garnishee  to  make  answer.      Conk.  Adm.  482. 

Whether  llic  libclhint  can  contest  \.\\v.  truth  of  the  garnishee's 
answer — Quere  1     Ibid.  483. 

See  also  Benedict's  Adm.  Prac.  §§  407,  433,  459. 

Rule  XXXVIIL 
In  cases  of  mariners'  wages,  or  bottomry,  or    rm.e  ss. 
salvage,  or  other  proceedings  in  rem,  where  freight  [.,,.J^rty, 
or  other  proceeds  of  property  are  attached  to,  or  £;;js'„( 
are  bound  by  the  suit,  wliich  are  in  the  hands  or  s.Zl'i<'w 
possession  of  any  person,  the  court  may,  upon 
due  application  by  petition  of  the  party  interested, 
require  the   party  charged  with   the   possession 
thereof  to  appear  and  show  cause  why  the  same 
should  not  be  brought  iuto  court  to  answer  the 
exigency  of  the  suit;  and  if  no  sufficient  cause 
be  shown,  the  court  may  order  the  same  to  be 
brought  into  court  to  answer  the  exigency  of  the 
suit,  and  upon  failure  of  the  party  to  comply  with 
the  order,  may  award  an  attachment    or  other 
compulsive  process  to  compel  obedience  thereto. 

Whore  the  coui't  of  admiralty  has  parted  with  the  possession 
of  property,  and  it  is  desirahh;  to  retake  the  ])ro])erly  into  the 
custody  of  the  court,  the  ])roper  process  against  any  pcnson, 
alleged  to  have  the  actual  or  constru(;tive  possession,  when  such 
person  is  not  a  party  to  a  stijjulation,  is  a  monition  in  the  first 
instance.  Conk.  Adm.  507.  T/ic  Uran  Para,  10  Whea.  497  ; 
6  Cond.  199. 


570  RULES  OF  THE  FEDERAL  COURTS. 

RULE  3S.  Wherever  a  lien  for  wages  exists  and  attaches  upon  the  pro- 
ceeds, it  is  the  familiar  practice  of  the  court  to  exert  its  juris- 
diction over  them,  hy  way  of  monition  to  the  parties  holding 
the  proceeds.  This  is  familiarly  known  in  the  cases  of  prize 
and  bottomry,  and  salvage,  and  is  equally  applicable  to  the  case 
of  wages.  The  lien  will  follow  the  ship  and  its  proceeds,  into 
whose  hands  soever  they  may  come  by  title  or  purchase  from 
the  owner.     Shej)pard  vs.  Taylor,  5  Pet.  675,  711. 

Admiralty  liens  generally  are  within  the  meaning  of  the 
above  rule.      Conk.  Adm.  50G. 

See  also  BcncdicCs  Adm.  Viae.  §  441. 


RULE  39. 


Rule  XXXIX. 
If  in  any  admiralty  suit,  the  libellant  shall  not 
Libeiiaut    appear  and  prosecute  his  suit  according  to  the 
pearing,     coursc  and  orders  of  the  court,  he  shall  be  deemed 

1iI)h1  to  1)0 

disMiissfci.  \yi  default  and  contumacy,  and  the  court  may, 
upon  the  application  of  the  defendant, 'pronounce 
the  suit  to  be  deserted,  and  the  same  may  be  dis- 
missed with  costs. 

Before  the  default  of  the  libellant  is  taken,  he  should  be 
called.      Co^nk.  Adm.  514. 

The  court  may  afford  him  a  further  opportunity  to  appear, 
though  this  will  n(jt  be  done  except  under  special  circumstan- 
ces, and  when  so  done,  it  will  be  until  some  particular  day,  and 
only  on  payment  of  costs.     Ihid.  515. 

See  also  Benedict's  Adm.  Frac.  §  455. 

Rule  XL. 
RULE  40.        The  court  may  in  its  discretion,  upon  the  mo- 
Decree      tion  of  the  defendant  and  the  payment  of  costs, 
defendant,  rcsciud  thc  dccrec  in  any  suit  in  which,  on  ac- 
w  ien  may  ^^^^^  ^^  j,^^^  coutumacy  and  default,  the  matter 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  571 

of  the  libel  shall  have  been  decreed  against  him,    «'  J^^" 
and  ffrant  a  rehearing  thereof,  at  any  time  within  bei-e- 
ten  days  after  the  decree  has  been  entered,  the 
defendant  submitting  to  such  further  orders  and 
terms  in  the  premises  as  the  court  may  direct. 

Bv  rule  29,  the  court  can,  also  in  its  discretion,  set  aside  a 
default  of  the  defendant,  "at  any  time  before  the  final  hearing 
and  decree,  upon  his  payment  of  all  the  costs  of  the  suit  up  to 
the  time  of  granting  leave  therefor,"  See  Rule  29,  and  notes 
thereto. 

The  rules  however  make  no  provision  for  varying  a  decree 
in  a  contested  suit.  In  regard  to  tlic  practice  in  such  cases  it 
has  been  held  in  Kngland  that  the  court  might,  in  a  case  of  di- 
rect fraud,  or  something  etpiivalent  lo  it,  suffer  a  cause,  which 
had  been  once  closed,  to  be  reupened  ;  but  there  must  be  strong 
reasons  and  mere  negligence  or  oversight  would  not  be  suffi- 
cient ground.      The  Fortitude,  2  Dod.  70. 

And  in  an  application  made  to  modify  a  decree,  it  was  held 
by  LushingtoH,  that  the  variation  must  be  confined  to  an  alter- 
ation of  an  error  arising  from  a  defect  of  knowledge  or  infor- 
mation upon  a  particular  point  in  the  case,  and  the  error  must 
be  brought  to  the  attention  of  the  court  with  the  utmost  dili- 
gence.     The  Monarch,  1  \Vm.  Rob.  21. 

In  the  United  States,  it  has  been  remarked  by  a  distinguished 
judge.  Story,  that  "if  the  district  court  has  a  right  to  entertain 
a  libel  of  review  in  any  case,  it  must  be  limited  to  very  special 
cases ;  and  either  where  no  appeal  by  law  lies,  because  the 
matter  is  less  in  value  than  is  required  by  law  to  justify  an  ap- 
peal, or  the  proper  time  for  any  appeal  is  passed,  and  the  de- 
cree remains  unexecuted ;  or  where  there  is  clear  error  in 
matter  of  law ;  or  if  not,  where  the  decree  has  been  obtained 
by  fi'aud;  or  where  new  facts  changing  the  entire  merits,  have 
been  discovered  since  the  decree  was  passed,  and  there  has  not 
only  been  the  highest  good  faith  (uhcrrlma  fides),  but  also  the 


572  RULES  OF  THE  FEDERAL  COURTS. 


RULE  40.  highest  diligence  and  an  entire  absence  of  just  imputations  of 
negligence;  and  finally,  where  the  principals  of  justice  and 
equity  require  such  an  interference  to  prevent  a  manifest  wrong. 
Further  than  this  1  am  not  prepared  to  go ;  and  I  may  say, 
that  with  my  present  impressions  I  should  go  thus  far  with 
some  hesitation,  and  pause  at  every  step."  The  Steamboat 
New  England,  3  Sum.  495,  500. 

Sec  also  Conk.  Adm.  705-711.  Dun.  Adm.  324-327;  Ben. 
Adni.  Prac.  §  451. 

Rule  XLI. 
RiTLE  41.        ^]i  sales  of  property  under  any  decree  in  admi- 
Saiestobe  rally  shall  be  made  by  the  marshal  or  his  deputy, 

by  a  mar-  •  i     i  i 

shai;  pro-  or   otlier   proper   officer   assigned    by  the    court, 

CCCQS  to 

be  paid  where  the  marshal  is  a  party  in  interest,  in  pur- 
registiy.  suance  of  the  orders  of  the  court;  and  the  pro- 
ceeds thereof,  when  sold,  shall  be  forthwith  paid 
into  the  registry  of  the  court  by  the  officer  making 
the  sale,  to  be  disposed  of  by  the  court  according 
to  law. 

In  judicial  sales  there  is  no  warranty.  Neither  the  marshal, 
nor  his  agent  the  auctioneer,  has  any  authority  to  warrant  the 
thing  sold.      The  Monte  Allegrc,  9  Whea.  610 ;  5  Cond.  709. 

How  far  the  marshal  would  be  liable,  in  his  private  capacity, 
if  he  warranted,  or  did  what  would  imply  a  warranty — Quere  ? 
Ibid. 

Where  the  proceeds  of  a  sale  are  brought  into  court,  they 
are  not  liable  to  make  good  a  loss  sustained  by  the  purchaser, 
in  consequence  of  a  defect  being  discovered  in  the  thing  sold. 
Ibid. 

Rule  XLU. 

RULE  42.        All  moneys  paid  into  the  registry  of  the  court 
Moueyato  shall  bc  dcpositcd  in  some  bank  designated  by 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  573 

the  court,  and  shall  be  so  deposited  in  the  name    rule  42 
of  the  court,  and  shall  not  be  drawn  out  except  be  d,;p„- 

•      1  r     A  sited,  and 

by  a  check  or  checks  signed  by  a  jud'^e  of  the  ii..w 

drawu. 

court  and  countersigned  by  the  clerk,  stating  on 
whose  account  and  for  whose  use  it  is  drawn,  and 
in  what  suit  and  out  of  what  fund  in  particular 
it  is  paid.  The  clerk  shall  keep  a  regular  book 
containing  a  memorandum  and  copy  of  all  the 
checks  so  drawn,  and  the  date  thereof 

Rule  XLIII. 

Any  person  having  an  interest  in  any  proceeds  Ri^i^« 

in  the  registry  of  the  court,  shall  have  a  right  by  interve- 

petition  and  summary  proceeding   to  intervene  proceeds, 

how  to 

pro  interesse  suo,  for  a  delivery  thereof  to  him;  come  in-, 
and  upon  due  notice  to  the  adverse  parties,  if  any, 
the  court  shall  and  may  proceed  summarily  to 
hear  and  decide  thereon,  and  to  decree  therein 
according  to  law  and  justice;  and  if  such  peti-  eHbct  if 

1  1  •  claim  dis- 

tion  or  claim  shall  be  deserted  or  upon  a  hearing  missed, 
be  dismissed,   the  court  mny,  in   its  discretion, 
award  costs  against  the  petitioner  in  faA^or  of  the 
adverse  party. 

In  a  suit  in  rem,  on  a  bottomry  bond,  underwriters,  to  whom 
an  abandonment  is  made,  which  has  not  been  accepted,  are  not 
admissible  as  claimants.      T/te  Ship  Packet,  3  Mason,  265. 

So  held  also,  under  like  circumstances,  in  a  case  of  libel  in 
rem  for  salvage.     The  ScJiooncr  Boston  and  Cargo,  1  Sum.  328. 

Generally  underwriters  can  not  appear  as  claimants,  unless 
the  property  is  abandoned  to  them,  and  accepted,  so  that  they 
have  an  interest  in  the  thing,  and  not  a  mere  interest  in  the 
cause.      The  Henry  Eivbanh,  1  Sum.  400,  405. 


574 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  43. 


But  any  person  claiming  an  interest  in  the  tiling  may  inter- 
vene.    The  Mary  Anne,  Ware,  104. 

Where  a  surplus  remains  in  court  from  the  proceeds  of  a 
sale,  made  for  the  benefit  of  a  lien  creditor,  it  may  be  appro- 
priated in  payment  of  other  liens  on  the  original  property,  but 
not  of  debts  arising  on  contracts  merely  personal.  Brackett 
vs.  The  Herculcsy  Gilpin,  184. 

Where  a  surplus  remains  in  court,  a  party  having  a  lien  or 
approprialion,  attaching  to  the  thing  from  whence  the  surplus 
proceeded,  and  antecedenlly  legally  fixed,  whatever  may  be  the 
nature  or  origin  of  the  lien  or  I'ight,  may  claim  a  distribution 
of  such  surplus,  and  that  although  the  original  demand  was 
not  such  as  could  have  been  proceeded  for  in  admiralty.  Har- 
per vs.  The  Netv  Brig,  Gilpin,  536. 

Where  a  vessel,  bona  fide  assigned  by  the  owner,  is  after- 
wards sold  under  a  lien  of  workmen,  the  assignee  is  entitled 
to  a  distribution  of  the  surplus,  in  preference  to  a  creditor 
having  no  such  appropriation.     Ibid. 

See  also  The  Favorite,  2  Rob.  232.  The  John,  3  do.  288. 
Gardiner  vs.  Ship  Nciv  Jersey,  1  Pet.  Adm.  Dec.  223,  and 
Conh.  Adm.  38  to  52.     Rule  34  and  notes. 


Rule  XLIV. 
In  cases  where  the  court  shall  deem  it  expe- 
^^  dient  or  necessary  for  the  purposes  of  justice,  the 
refe?  maN  court  may  refer  any  matters  arising  in  the  pro- 
gress of  the  suit  to  one  or  more  commissioners, 
to  be  appointed  by  the  court  to  hear  the  parties 
and  make  report  therein.  And  such  commis- 
sioner or  commissioners  shall  have  and  possess 
all  the  powers  in  the  premises  which  are  usually 
given  to  or  exercised  by  masters  in  chancery  in 
references  to  them,  including  the  power  to  admin- 


RULE  44. 


ters  to 
commis- 
sioners ; 

aud  pow- 
ers of 
such. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  575 

ister  oaths  to  and  examine  the  parties  and  wit-    '^^J^" 
nesses  toucliing  the  premises. 

The  act  of  Congi-ess  of  181.'^,  ch.  155.  (2  Stat,  at  Large) 
authorizing  the  marshal  to  make  distribution  of  prize  proceeds, 
docs  not  narrow  the  jurisdiction  of  the  proper  prize  court  to 
refer  any  mutters  connected  tlierewith.  The  St.  Lawrence  and 
Cargo,  2  Gall.  20. 

In  the  above  case  the  matter  was  referred  to  commissioners 
with  directions  to  state  the  accounts  of  the  cruise,  including 
the  charges,  disbursements,  advances  and  commissions,  of  the 
general  agents  so  far  as  they  may  respect  the  petitioners  be- 
fore the  court — and  further  to  state  the  shares  to  which  the  pe- 
titioners are  entitled  and  the  number  of  shares  in  the  whole 
concern — and  the  liens  or  special  claims,  if  any,  of  the  general 
agents.  The  commissioners  were  also  required  to  give  notice 
to  the  agents  or  attorneys  of  the  parties  of  the  times  and  pla- 
ces of  their  meeting,  and  to  report  their  doings  to  the  court, 
as  soon  as  conveniently  could  be.     Ibid.  26. 

The  rule  is  intended  to  subserve  the  despatch  of  business,  by 
preventing  delays  in  court  for  want  of  lime;  and  to  save  ex- 
pense of  parties,  when  the  witnesses  reside  at  a  distance  from 
the  court.     Co7ik.  Adin.  525. 

Rule  XLV. 
All  appeals  from  the  district  to  the  circuit  court    rule  45. 
must  be  made  while  the  court  is  sitting,  or  within  Appeals, 
such  other  period  as  shall  be  designated  by  the  be  made. 
district  court  by  its  general  rules,  or  by  an  order 
specially  made  in  the  particular  suit. 

An  appeal  suspends  the  effect  of  a  decree  appealed  from. 
Penhallow  vs.  Doanc's  Admx.,  3  Dall.  54,  87,  119  ;  1  Cond.  21. 
Yeaton  vs.  United  States,  5  Cra.  281 ;  2  Cond.  256.  A?ion.  1 
Gall.  22. 


576 


RULES  OF  THE  FEDERAL  COURTS. 


RULE  45. 


The  rights  of  a  party  in  the  inferior  court,  not  affected  by 
tlio  part  of  the  decree  appealed  from,  will  not  be  noticed  in  the 
court  above.      ^FcDonovgh  \s.  Danneri/, 3T>rI\.  ISS;   1  Cond.94- 

In  proceedings  in  rem,  on  appeal,  the  proceeds  follow  the 
cause  into  the  circuit  court,  but  not  into  the  supreme  court. 
The  Collector,  6  Whea.  194;  5  Cond.  Q>2.  The  arotius,  I 
Gall.  503.  Daris  vs.  The  Seneca,  2  Gilpin,  34,  40,  and  see 
The  Grotius,  1  Gall.  503. 

Courts  of  admiralty  will  not  encourage  appeals  in  salvage 
cases  upon  slight  or  frivolous  giound,  or  indeed,  in  any  cases, 
except  upon  some  plain,  clear  and  determinate  mistake  of  law 
or  fact  in  the  court  below.  Bearse  vs.  340  Pigs  of  Copper,  1 
Story,  314.      The  Sybil,  4  Whea.  98 ;   4  Cond.  399. 

An  appeal  from  a  decree  of  the  district  coui't  must  be  taken 
in  open  court,  before  the  adjournment  sine  die,  unless  a  differ- 
ent period  be  prescribed  by  the  court.  Norton  vs.  Rich,  3  Ma- 
son, 443. 

See  also  Canter  vs.  Amer.  and  Ocean  Ins.  Co.,  3  Pet.  307. 
Oliver  vs.  Alexander,  6  Pet.  143.  Stratton  vs.  Jarvis,  8  Pet. 
4.  Wescott  vs.  Bradford,  4  Wash.  492.  Tiie  Woodbridge,  1 
Hagg.  63. 


RULE  46. 

Courts  to 
regulate 
further 
practice. 


RtJLE  XLVL 

In  all  cases  not  provided  for  by  the  foregoing 
rules,  the  district  and  circuit  courts  are  to  regu- 
late the  practice  of  the  said  courts  respectively, 
in  such  manner  as  they  shall  deem  most  expe- 
dient for  the  administration  of  justice  in  suits  in 
admiralty. 


Rule  XLVIL 

RULE  47. 

—  These  rules  shall  be  in  force  in  all  the  circuit 

takee'ttect  aud  district  courts  of  the  United  States,  from  and 
1845.'  '      after  the  first  day  of  September  next. 


DISTRICT  COURTS  IN  ADMIRALTY  CASES.  577 

And  it  is  ordered  by  the  court,  that  the  forego-    ulle  47. 
ing  rules  be,  and  they  are  adopted   and  promul-  Extent  ot 
gated  as  rules  for  the  regulation  and  government  S.'*"^ 
of  the  practice  of  the  circuit  and  district  courts  of 
the  United  States,  in  suits  of  admiralty  on  the 
instance  side  of  the  courts. 

Rule  XL  VIII. 

C  December  Teitn,  1850,  ; 

In  all  suits  in  personam,  where  a  simple  war-    Rur^E  48. 
rant  of  arrest  issues  and  is  executed,  bail  shall  Arrest, 
be  taken  by  the  marshal  and  the  court  in  those  ttT  '"' 
cases  only  in  which  it  is  required  by  the  laws  of 
the  state,  where  an  arrest  is  made  upon  simi- 
lar  or  analogous  process  issuing  from  the  state 
courts. 

And  imprisonment  for  debt,  on  process  issuing  imprison- 
out  of  the  admiralty  court,  is  abolished  in  all  cases  where 
where,  by  the  laws  of  the  state  in  which  the  court  ''''°^"^'''^- 
is  held,  imprisonment  for  debt  has  been  or  shall 
be  hereafter  abolished,  upon  similar  or  analogous 
process  issuing  from  a  state  court. 

The  twenty-seventh  rule  shall  not  apply  to  9"^^'^.^^- 
cases  where  the  sum  or  value  in  dispute  does  not  Kuiesr. 
exceed  fifty  dollars,  exclusive  of  costs,  unless  the 
district  court  shall  be  of  opinion  that  the  proceed- 
ings prescribed  by  that  rule  are  necessary  for 
the  purposes  of  justice  in  the  case  before  the 
court. 

37 


578  RULES  OF  THE  FEDERAL  COURTS. 

RULE  48.        All  rules  and  parts  of  rules  heretofore  adopted, 
Repeal  of    inconsisteiit  wltli  this  Order,  arc  hereby  repealed 
and  annulled. 

[The  above  rules,  with  the  exception  of  the  last,  were  pro- 
mulgated by  the  supreme  court,  in  January,  1845.  The  last 
(48th)  rule  was  promulgated  December  term,  1850.] 


INDEX 


TO 


RULES   IN    ADMIRALTY 


References  ia  italics  are  to  the  notes :    otherwise  to  the  rules. 


Amendments : 

To  informations  and  libels,  when  of  course 24 

To  informations  and  libels,  when  on  motion 24 

To  informations  and  libels,  upon  special  exceptions 24 

To  informations  and  libels,  decisions  respecting 24 

Answer  : 

Monitions  to  require  in  suits  in  jiersonam 2 

In  instance  cases,  may  be  required  to  be  on  oath 23 

To  libels  in  rem  and  in  personam,  to  be  on  oath 27 

Exceptions  to  this  rule 48 

To  be  full  and  explicit  to  each  allegation 27 

To  be  to  each  interrogatory  propounded 27 

Imjiortant  qualifications  of,  and  decisions  respecting 27 

Libellant  may  except  to 28,  30 

Exceptions  to,  held  good,  defendant  to  answer  further  and 

pay  costs 28,  30 

Not  made  on  return  day,  defendant  in  contumacy  and  de- 
fault     29 


580 


INDEX. 


Rule, 

Answer  (continued)  : 

Not  matle,  libel  taken  pro  confesso 29 

How  may  be  put  in  after  default 29 

What  not  esteemed  an  answer 29 

Decisions  resjyccting 29 

Further,  may  be  compelled  by  attachment 30 

Costs  on  further  anstoer 30 

To  what  allegations,  &c.,  need  not  be  made 31 

Of  libellaiit,  when  may  be  required  on  oath 32 

"             not  made,  libel  may  be  dismissed 32 

"             how  compelled 32 

Oath  to,  when  dispensed  with 33 

When  taken  under  a  commission 33 

Required  to  allegations  of  an  intervenor 34 

Of  garnishee,  what  to  contain 37 

Appeals  : 

From  district  to  circuit  court,  when  must  be  made 45 

Effect  of  an  a'pi)eal 45 

Decisions  respecting 45 


Arrest  : 

Warrant  of,  in  suits  in  personam,  nature  of 2 

in  suits  in  personam,  bail  on 3 

in  suits  in  2>ersona7n,  attachment,  how  dissolved  4 

in  suits  in  personam,  when  not  to  issue 7 

in  suits  in  rem,  how  executed 9 

in  suits  in  rem,  may  take  projyerty  from  sheriff  9 

in  suits  in  rem,  notice  of  to  be  given 9 

in  suits  in  rem,  length  of  time  (f  notice 9 

in  suits  in  rem,  perishable  projierty  seized  un- 
der, how  disposed  of 10 

in  suits  in  rem,  on  the  apjilication  of  either  jiarty  10 

in  suits  in  rem,  ship  arrested,  how  disposed  of  11 

to  compel  defendant  to  perform  decree 21 

howr  defendant  discharged  from 21 

How  limited 48 


INDEX.  581 

RULB. 

Assault  : 

Suits  for,  to  be  in  2^cr.sonam  only 16 

Decisions  rcs2>ccting IG 

Attachment  : 

Distinction  between  simple  and  foreign 2 

In  suits  in  personam,  nature  and  power  of 2 

"                in  ichat  cases  may  issue 2 

"               how  dissolved 4 

Order  Jor  dissolution,  Jioic  obtained  and  enforced 4 

To  compel  defendant  to  obey  decree 21 

Extends  to  stiits  in  rem  and  in  2>ersonam 21 

Defendant  may  be  imprisoned  on 21 

To  compel  further  answer  of  defendant 30 

To  compel  answer  of  libcllant   32 

Against  property  in  hands  of  third  persons,  proceedings  on  38 

Foreign,  answer  of  garnishee  in  oases  of 37 

"        how  answer  compelled 37 

"        effects  in  hands  of  garnishee  how  held 37 

"        what  is 2,  37 

"        when  may  issue 37 

"        hotv  served 37 

"        decisions  respecting 37 

Bail  : 

In  suits  in  j^orsonam,  when  marshal  may  take 3 

*'                    when  can  not  be  demanded 3 

"                   how  may  be  reduced 6 

Exorbitant  demanded,  j^ractice  on 6 

Bonds : 

On  taking  bail  in  suits  in  personam,  condition  of 3 

Meaning  of  the  word  "  bond'" 3 

How  should  be  drawn 3 

On  taking  bail  in  suits  in  personam,  may  be  ei forced  sum- 
marily    3 

Meaning  of  icord  ^summarily'' 3 


582  INDEX. 

RCLB. 

Bonds  (continued)  : 

On  dissolving  attachment  in  suits  in  ■personam,  condition  of       4 
On  dissolving  attachment  in  suits  in  fcrsonam,  may  be  en- 
forced summarily ^ 

Before  whom  may  be  taken «'>»  35 

When  new  sureties  to  may  be  required 6 

Bottomry  bonds  : 

Suits  on,  when  in  rem  and  when  in  personam 18 

Tref erred  to  every  claim  except  wages 18 

Decisions  respecting 1° 

On  proceedings  in  rem,  how  attached  property  brought  in- 
to court 38 

Circuit  court  : 

Appeals  to,  when  to  be  made   45 

When  may  make  other  rules 46 

Claimant : 

When  may  receive  perishable  property 10 

When  may  receive  ship  if  arrested 11 

To  verify  his  claim,  in  suits  in  rem 26 

In  suits  in  rem,  to  give  stipulation  for  costs 26 

Who  may  he 26 

Decisions  respecting 26 

Clerk : 

Libel  must  be  filed  with  before  process  can  issue 1 

To  keep  account  of  moneys  paid  into  court,  and  for  whom 
paid  out 42 

Collision  : 

Suits  for,  against  what  libellant  may  proceed 15 

Decisions  respecting 15 

In  suits  for,  how  attached  property  may  be  brought  into 
court 38 


INDEX.  583 

Rdlb. 

Commissioners  : 

•  May  take  bonds  and  stipulations 5,  35 

When  references  may  be  made  to 44 

Powers  of,  on  such  references 44 

Decisons  respecting  same, 44 

Commissions  : 

When  awarded  to  take  defendant's  answers 33 

Confession  : 

What  called  a  presumptive 30 

Contumacy  : 

When  libellant  deemed  in 39 

Libellant  in,  suit  may  be  dismissed 39 

Decree  for,  against  defendant,  when  may  be  rescinded  and 

a  rehearing  granted 40 

When  defendant  deemed  in 29 

Defendant  in,  libel  taken  pro  confesso 29 

Court  : 

Always  open,  for  what  furposcs 1 

Judge  co7istitutes  the,  wherever  he  may  he 1 

When  may  dissolve  attachments  in  personam 4 

When  may  take  bonds  and  stipulations 5,  35 

When  may  reduce  bail  in  2^crsonani 6 

When  may  require  new  sureties  in  personam 6 

When,  in  suits  in  rem,  may  direct  property  to  be  delivered 

by  third  persons  to  marshal 8 

When  may  deliver  perishable  property  to  claimant 10 

When  may  deliver  arrested  ship  to  claimant 11 

When  may  order  arrested  ship  sold 11 

When  will  hear  libel  ex  parte 29 

When  will  set  aside  default  of  defendant  for  not  answering  29 

When  will  require  further  answer 30 

When  will  dismiss  libel  for  default  of  libellant  to  answer 

interrogatories 32 

Will  order  answer  to  claim  of  intervenor 34 


584  INDEX. 

Rule. 

Court  (continued)  : 

When  may  set  aside  decree  for  contumacy -  40 

When  may  vary  or  alter  decree 40 

Court,  circuit  : 

See  title  Circuit  court. 

Court,  district  : 

See  title  District  court. 

Costs : 

In  libels  in  jpersonam,  when  defendant  to  secure 25 

"                    when  liheUant  to  secure 25 

"                    decisions  respecting 25 

In  suits  in  rem,  when  claimant  to  secure 26 

On  exceptions  to  answer,  when  defendant  to  pay 28 

On  setting  aside  order  pro  confesso 29 

On  further  answer  of  defendant 30 

On  dismissal  of  suit  for  contumacy  of  libellant 39 

When  petitioner  or  intervener  to  pay 43 

Credits  : 

Of  defendant  may  be  attached  in  jnrsonam, 2 

In  hands  of  garnishee  to  be  held  to  abide  exigency  of  suit  37 

Meaning  of  the  word  " credits'''' 37 

Decree  : 

For  payment  of  money,  how  enforced 21 

In  other  cases,  how  enforced 21 

Against  defendant  for  contumacy 30 

Against  libellant  for  contumacy 39 

Against  defendant  for  contumacy,  whem  may  be  rescind- 
ed    40 

When  court  can  alter  or  vary ■>■ 40 

Default  : 

Of  defendant  to  answer  libel 29 

Of  defendant  to  answer,  when  may  be  set  aside 29 


INDEX.  585 

Kl-lb. 

Default  (continued) : 

Decisions  rcsjiccting 29 

Of  libellant  to  answer  libel,  it  may  be  dismissed 32 

Of  libellant  for  want  of  prosecution 30 

JjthcUant  to  he  called  before 39 

Of  defendant  for  contumacy,  when  set  aside 40 

Defendant  : 

How  compelled  to  perform  decree 21 

Decisions  resj)ecti/>g 21 

May  be  arrested  to  compel  ])erformance  of  decree 21 

How  discharged  from  such  arrest 21 

To  answer  all  interrogatories  on  oath 23 

In  libels  in  jtersonam,  when  to  secure  costs 25 

Decisions  respecting 25 

To  answer  all  libels  on  oath,  generally 27 

Answer  of,  when  taken  by  commission 33 

Oath  of,  when  may  be  dispensed  with 33 

When  libt'l  taken  confessed  against  for  want  of  answer  . .  29 

When  may  have  such  default  set  aside 29 

When  to  make  further  answer CO 

Decisions  respecting 30 

When  libel  may  be  taken  confessed  against,  for  insufficient 

answer 30 

When  may  object  to  answering  libel 31 

May  require  answer  of  libellant 32 

May  have  attachment  to  compel  such  answer 32 

May  have  libel  dismissed,  in  default  of 32 

When  may  have  decree  for  contumacy  rescinded,  and  a  re- 
hearing    40 

District  court  : 

Appeals  from,  when  to  be  made 45 

Wlicn  may  make  other  rules 46 

Exceptions  : 

To  answer  for  insufficiency,  &c.,  when  lie 28 

Arc  temporary  or  perpetual. 28 


586  INDEX. 

RCLB. 

Exceptions  (continued)  : 

To  answer  deemed  good,  defendant  lo  answer  further 28 

Decisions  respecting 28 

To  answer,  for  want  of  fullness 30 

"            allowed,  further  answer 30 

"            allowed,  libel  taken  pro  confesso 30 

May  be  referred  to  a  master 36 

Allowed,  objectionable  matter  to  be  expunged 36 

Execution  : 

To  enforce  decree,  nature  of 21 

Foreign  attachment  : 

See  Attachment,  Foreign. 

Freight  : 

When  material  men  may  proceed  against 12 

When  suits  for  wages  may  be  against 13 

Suits  against  for  hypothecation 17 

How  brought  into  court 38 

Garnishee  : 

Answer  of,  to  be  on  oath 37 

"           how  compelled 37 

Effects  in  hands  of,  how  disposed  of 37 

Hypothecation  : 

Suit  for,  in  rem  or  in  personam 17 

Can  not  he  to  an  assignee 17 

Wust  he  onlij  on  urgent  necessity 17 

Impertinence : 

Exceptions  for,  referred  to  master 36 

Exceptions  allowed,  effect  of 36 

Imprisonment  : 

Where  abolished 48 


INDEX.  587 

Rdlb. 

Informations  : 

Upon  seizures,  wliat  to  contain 22 

Decisions  rcsjwctlng 22 

Upon  seizures,  to  state  causes  of  forfeiture 22 

Upon  seizures,  to  conclude  witli  prayer  for  process 22 

To  conclude  against  the  statute 22 

Upon  seizures,  to  recjuire  those  in  interest  to  appear 22 

Arc  not  criminal  proceedings 22 

Amendments  in,  wlien  of  course 24 

Amendments  in,  when  on  motion 24 

Decisions  respecting 24 

Exceptions  to,  referred  to  master 3G 

Exceptions  to  aHowed,  effect  of 36 

In  personam  : 

Mesne  process  in 2 

Process  to  contain  warrant  of  arrest 2 

When  marshal  may  take  bail 3 

Stipulation  of  bail,  conditions  of 3 

Stipulation,  summary  proceedings  on 3 

Attachment  in,  how  dissolved 4 

Bail  in  may  be  reduced 6 

New  sureties  may  be  required   6 

Warrant  of  arrest  for,  only  in  cases  over  $500.00 7 

Property  and  credits  how  attached 2 

Suits  by  material  men 12 

Decisions  respecting 12 

Suits  for  wages 13 

Decisions  respecting 13 

Suits  for  pilotage 14 

Decisions  respecting 14 

Suits  for  damage  by  collision 15 

Decisions  respecting 15 

Suits  for  assault IG 

Decisions  respecting IG 

Suits  for  hypothecation 17 

Decisions  respecting 17 


588  INDEX. 

Rule. 

In  personam  (continued)  : 

Suits  on  bottomry  bonds   18 

Decisions  respecting 18 

Suits  for  salvage 19 

Decisions  respecting 19 

Libels  what  to  contain 23 

Decisions  respecting 23 

When  defendant  to  secure  costs 25 

When  lihellunt  to  secure  costs 25 

Answer  to  be  on  oath  and  explicit 27 

Answer  may  be  excepted  to 28 

Compulsory  process  against  garnishee 37 

In  rem  : 

Suit  against  ship,  &c.,  proceedings  in 8 

Property  in  hands  of  third  persons,  to  be  delivered  to  mar- 
shal    8 

Process  to  be  by  warrant  of  arrest 9 

Process,  duty  of  marshal  on 9 

When  ship  delivered  to  claimant 11 

When  ship  will  be  sold 11 

Suits  by  material  men 12 

Decisicms  resjyecting 12 

Suits  for  mariners'  wages 13 

Decisions  respecting 13 

Suits  for  pilotage 14 

Decisions  respecting 14 

Suits  for  damage  by  collision 15 

Decisions  respecting 15 

Suits  for  hypothecation 17 

Decisions  respecting 17 

Suits  on  bottomry  bonds 18 

Decisions  respecting 18 

Suits  for  salvage 19 

Decisions  respecting 19 

Libels,  what  to  state 22,  23 

Decisions  respecting  same 22,  23 


INDEX.  589 

RULB. 

In  rem  (continued)  : 

Claimant  to  verify  his  claim 20 

Claimant  to  secure  costs 26 

Answer  to  be  on  oath,  and  explicit 27 

Intervener,  how  may  come  in 34 

Who  may  he  intervenors 34 

How  freiffht,  Sec,  brought  into  court 38 

Interrogatories  : 

Defendant  to  answer  on  oath 23 

What  ones  defendant  need  not  answer 31 

When  libellant  to  answer 32 

When  libellant  need  not  answer 32 

Wlien  taken  pro  confcsso 32 

When  oath  to  waived 33 

Garnishee  to  answer 37 

Intervenor : 

In  rem,  how  may  come  in 34 

"        allegations  of  to  be  answered 34 

"       to  give  stipulation  for  costs 34 

In  rem,  who  may  he  intervenors 34 

AVhen  may  apply  for  proceeds  in  court 43 

When  liable  for  costs,  in  such  cases 43 

Who  may  he  intervenors  in  such  cases 43 

Decisions  respecting 43 

Irrelevancy: 

Of  answer,  libellant  may  except  to 28 

Of  answer  allowed,  effect  of 28 

Exceptions  for,  referred  to  master 36 

Exceptions  allowed,  effect  of 36 

Judge  : 

Is  a  court,  wherever  lie  may  he 6 

May  order  sale  of  perishable  j^ropcrfy  in  vacation 10 


590  INDEX. 

RVLB. 

Libel  : 

W/iaf  is  a  libel 1 

Must  be  filed  before  pi'ocess  can  issue 1 

Upon  seizures,  what  to  contain 22 

"              to  jrive  causes  of  forfeiture 22 

o 

"             must  pray  for  process 22 

Upon  seizures,  to  give  notice  to  all  persons  in  interest  to 

appear 22 

In  instance  causes,  what  to  contain 23 

"                 to  slate  facts  relied  on 23 

"                  may  require  answer  on  oath 23 

Decisions  respecting 23 

Amendments  in,  when  of  course 24 

Amendments  in,  when  on  motion 24 

Decisions  respecting 24 

In  personam,  when  defendant  to  secure  costs 25 

Answer  to,  to  be  on  oath  and  explicit 27 

When  may  be  taken  pro  confesso 29 

When  heard  ex  parte 29 

Order  />ro  confesso,  when  set  aside 29 

Decisions  respecting 29 

Penalty  of  not  answering  fully 30 

AVhen  defendant  need  not  answer 31 

When  may  be  dismissed 32 

Exceptions  to,  for  surplusage,  &c 36 

"             referred  to  a  master 36 

"              allowed,   effect  of 36 

Dismissed,  suit  not  being  prosecuted 39 

LinEL  OF  INFORMATION  : 

What  is 1 

lil  BELL  ANT  : 

How  to  proceed  in  suits  by  material  men 12 

«<                 in  suits  for  mariners'  wages 13 

"                  in  suits  for  pilotage 14 

"                 in  suits  for  collision 15 


INDEX.  591 

ROLB. 

Li BELT- ANT  (continuecl)  : 

How  to  proceed  in  suits  for  assault IG 

"                  in  suits  for  hypothecation 17 

"                  in  suits  on  l)ottomry  bonds 18 

"                 in  suits  for  salvage 19 

What  process  may  have  to  enforce  decree 21 

May  except  to  answer  for  insufficiency 28 

Decisions  resjyccting 28 

May  except  to  answer  for  not  being  full,  &c 30 

To  answer  on  oath  defendant's  interrogatories 32 

How  compelled  to  make  answer 32 

Penalty  for  not  answering 32 

When  oath  of,  waived 33 

Effect  of  not  prosecuting  his  suit 39 

To  he  called  before  default 39 

When  to  give  security  for  costs 25 

Mariners'  wages  : 

Suits  for,  in  rem  or  in  personam 13 

A  fourfold  remedy  for 13 

Seamen  may  sue  separately  for 13 

Suits  for,  how  freight  Sec,  brought  into  court 38 

Mariners  : 

WJw  constitute 13 

Not  reqxiired  to  secure  costs 25 

Marshal  : 

To  serve  process,  except  when  interested 1 

When  may  take  bail,  in  personam 3 

When  to  receive  property  from  third  persons 8 

How  to  execute  warrant  of  arrest,  in  rem 9 

How  to  execute  writ  of  execution 21 

To  sell  property  except  when  interested 41 

Can  not  gire  varranty 41 

Decisions  respecting  same 41 


592  INDEX. 

Rule. 

Material  men  : 

Suits  by,  in  rem  and  in  personam 12 

Claim  of,  a  preferred  claim 12 

Only  on  foreign  vessels 1" 

Mesne  process  : 

See  Process,  Mesne. 

Monition  : 

In  suits  in  personam,  nature  of 2 

How  to  he  served 2 

In  petitory  and  possessory  suits   20 

The  jirocess  to  gain  possession  of  property  in  the  hands  of 

a  third  person 38 

Moneys : 

Proceeds  of  sale  to  be  paid  into  court 42 

In  court,  how  disposed  of 43 

Notice  : 

Of  execution  of  warrant  of  arrest,  when  given 9 

On  seizures  to  be  given  to  all  interested 22 

Oath  : 

When  libellant  may  require  answer  under 23 

Statement  of  claimant  to  be  under 26 

Answers  to  libels  to  be  on 27 

When  defendant  may  demand  answer  of  libellant  to  be 

under 32 

Either  party  may  demand  an  ansiver  under  oath 32 

When  may  be  dispensed  with 33 

When  can  not  he  required 31 

How  administered 33 

Owners  of  ships  : 

Suits  by,  how  commenced 20 


INDEX.  593 

Rdle. 

Pari'iks  : 

May  be  exiimincd  on  oath  by  commissioners 44 

Answers  of,  may  he  required  under  oath 32 

Perishable  property  : 

When  may  be  sold 10 

AVhcn  delivered  to  claimant 10 

Stipulation  on  such  delivery   10 

Petitory  suits  : 

Commenced  by  warrant  of  arrest 20 

Monition  in,  to  appear  and  answer 20 

Dejinition  of 20 

Pilotage : 

Suits  for,  in  rem  or  in  personam 11 

8uits  for,  not  in  the  case  of  foreign  vessels 11 

Suits  for,  how  freight  &c.,  brought  into  court   38 

Pleadings  : 

Double,  not  allowed 27 

Protracted  ones,  when  may  he  nsed 27 

Requisites  of. 27 

Possessory  suits  : 

Commenced  by  warrant  of  arrest 20 

Monition  in,  to  appear  and  answer 20 

Definition  of. 20 

Practice  : 

Decisions  concerning  the  general  practice  of  the  district  courts, 
ante  pp.  189  -  203. 

Process,  mesne  : 

Not  to  issue  until  libel  fded 1 

In  suits  in  personam 2 

In  suits  in  rem 'J 

Process  : 

Marshal  to  sei^e  except  when  interested 1 

Hoic  drawn,  signed  and  tested 2 

38 


594  INDEX. 

Rui.B. 

Process  (continued) : 

Of  execution,  summary  on  stipulations 3 

In  proceedings  m  rem 9 

In  rem.,  notice  of  execution  of 9 

In  suits  by  material  men 12 

"         for  mariners'  wages 13 

"         for  pilotage 14 

"         for  collision   15 

"         for  assault 16 

"         for  hypothecation 17 

"         on  bottomry  bonds 18 

"         for  salvage 19 

"         petitory  and  possessory 20 

Pro  confesso : 

Libel  against  defendant  so  taken  for  want  of  answer 29 

Such  order  when  set  aside 29 

Libel  taken  for  inexplicit  answer 30 

Interrogatory  taken  against  libellant 31 

Property  : 

How  attached  in  personam 2 

How  attached  in  rem 9 

In  hands  of  third  persons,  how  brought  into  court 38 

Decisions  respecting  the  same 38 

Sales  of,  to  be  by  marshal 41 

Proceeds  to  be  paid  into  court 41 

Claimants  for  such  proceeds 43 

Who  majj  make  such  claim ....  43 

Rehearing  : 

In  case  of  contumacy  and  default  of  defendant,  when  granted  40 

Reference : 

To  a  master  of  exceptions  for  surplusage,  &c 36 

Of  matters  to  commissioners,  when 44 

Decisions  respecting  same 44 


INDEX.  595 

Rule. 

Relkvancy : 

Of"  answer,  exccplions  lor 28 

Reference  to  master  for 30 

Uei'lication  : 

When  not  necessary,  and  uhen  maij  he  made 27 

Rules  : 

When  the  courts  may  make  others 46 

When  to  take  efl'ect 47 

Repeal  of 47 

Sale  of  property  : 

By  whom  to  be  made 41 

No  warranty  07i 41 

Proceeds  of,  how  disposed  of 41 

Decisions  respecting  same 41 

Salvage : 

Suits  for,  in  rem  or  in  fcrsonam 19 

Decisions  respecting 19 

How  regulated,  and  rates  of 19 

Suits  for,  how  attached  properly  brought  into  court 38 

ScAiXDAL  : 

Exceptions  for,  may  be  taken 3G 

"              referred  to  a  master 36 

allowed,  effect  of 36 

Ship  : 

When  may  be  delivered  to  claimants 11 

When  may  be  sold II 

Claimant  can  not  disfi//e  ralue  designated  in  tJie  stipulation  1 1 

Stipulation  : 

When  marshal  may  take  in  suits  in  personam 3 

Condition  of,  in  such  cases 3 

May  be  enforced  summarily 3 


596  INDEX. 

Rule. 

Stipulation  (continued) : 

On  dissolution  of  attachment  in  jicrsonam 4 

How  such  enforced 4 

Before  whom  may  be  taken 5,  35 

When  amount  of  may  be  reduced 6 

On  delivery  of  perishable  property  to  claimant 10 

On  delivery  of  ship  lo  claimant 11 

For  costs  by  defendant,  in  suits  m  personam 25 

For  costs  by  claimant,  in  suits  in  rem 26 

By  an  intervenor  to  abide  by  decree,  &c 34 

Taken  hy  commissioners,  practice  in 35 

Hoic  construed,  and  decisions  concerning 35 

Sureties : 

To  bonds  and  stipulations  in  suits  in  personam,  how  pro- 
ceeded against 3 

Sufficiency  of,  liow  determined 3 

Not  relieved  hy  surrender  or  death  of  j^rincipal 3 

On  dissolution  of  attachment  in,  personam,  how  proceeded 

against 4 

To  stipulation  on  delivery  of  perishable  property 10 

"                on  delivery  of  ship  to  claimant 11 

"               of  defendant  in  2)ersonam,  to  secure  costs . .  25 

"               of  claimant  in  rem,  to  secure  costs 26 

"                of  intervenor 34 

Surplusage  : 

Exceptions  for,  may  be  taken 36 

"                 to  be  referred  to  master 3G 

"                 allowed,  effect  of 36 

Torts  : 

Marine,  jurisdiction  in  cases  of. 16 

Witnesses  : 

May  be  examined  by  commissioners  on  refin^ence 44 

Warrant V  : 

None  given  on  sales  of  property 41 


APPENDIX: 


CONTAINING    TUE 


ORDERS  OF   THE  HIGH  COURT   OF  CHANCERY 

IN  ENGLAND, 

IN    FORCE    1st   august,    1842; 


AND    ALSO   THE 


NEW  ORDERS  OF  THE  SAME  COURT, 

ADOPTED    IN    1845; 

AND    ALSO 

A  LIST  OF  THE  JUSTICES,  REPORTERS  AND  CLERKS 

OK    THE 

SUPREME  COURT, 

ANI>    OK   TllK. 

TIMES  AND  PLACES  OF  HOLDING  THE  FEDERAL  COURTS, 

AND    OK   THE 

OFFICERS  OF  THE  SAME. 


O  11  D  E  11 S 


HIGH  COURT   OF   CHANCERY 


OF   ENGLAND  : 


As  in  Force  August  1st,  1842. 


PREFACE. 


The  practice  of  the  High  Court  of  Chancery,  in  England,  has 
always  been  regarded  by  the  Federal  Courts  of  the  United  States, 
since  the  time  of  their  organization,  as  aifording  outlines  for  their 
practice,  subject,  however,  to  the  right  of  making  such  altera- 
tions of  the  same  as  circumstances  should  render  necessary. 

As  early  as  1791,  the  Supreme  Court  had  its  attention  directed 
to  this  subject  by  the  then  Attorney  General  of  the  United  States, 
and  at  that  time  promulgated  the  following  order,  which  is  the 
seventh  rule  of  that  court. 

"  The  Chief  Justice,  in  answer  to  the  motion  of  the  Attorney 
General,  made  yesterday,  informs  him  and  the  bar,  that  tliis  court 
consider  the  practice  of  the  courts  of  King's  Bench,  and  of  Chan- 
cery, in  England,  as  affording  outlines  for  the  practice  of  this 
court ;  and  tliat  they  will,  from  time  to  time,  make  such  altera- 
tions therein  as  circumstances  may  render  necessary." 

A  like  recognition  of  tlie  general  efficacy  and  force  of  the  rules 
of  the  English  Court  of  Chancery,  and  of  the  King's  licnch,  is 
found  in  an  anonymous  case  reported  in  2  Dallas,  411. 

The  late  Rules  of  Ei^u'ity,  pronuilgated  by  the  Supreme  Court 
in  1S42,  have  also  a  provision  similar  to  the  one  in  the  rule  above 
quoted.  It  is  numbered  as  ruU'  ninety  of  the  Rules  of  E(|uity, 
and  is  as  follows  : 

"  In  all  cases  where  tlie  rules  prescribed  by  this  court,  or 
by  the  Circuit  Court,  do  not  apply,  tlie  practice  of  tlie  Circuit 


602  PREFACE. 


Court  shall  be  regulated  by  the  prese7it  practice  of  the  High 
Court  of  Chancery  in  England,  so  far  as  the  same  may  reasona- 
bly be  applied  consistently  with  the  local  circumstances  and 
local  convenience  of  the  district,  where  the  court  is  held,  not  as 
positive  rules,  but  as  furnishing  just  analogies  to  regukite  the 
practice." 

The  principle  and  extent  of  this  rule  have  also  been  maintained 
and  supported  by  the  Supreme  Court  in  the  cases  of  Story  vs. 
Livino-ston,  13  Pet.  o59,  3GS:  and  of  Rliodc  IsIandxB.  Massachusetts, 
12  Pet.  735,  739 ;  and  by  the  same  case  in  14  Pet.  210,  256  ;  and 
also  by  the  Circuit  Court  of  the  first  circuit,  in  the  case  of  Emer- 
son  vs.  Davies,  1  Wood,  and  Min.  21,  24 ;  and  S7nith  vs.  Burnham, 
2  Sum.  612. 

The  Code  of  Rules,  of  which  the  one  last  quoted  makes  a  part, 
was  promulgated  on  the  2d  of  JVIarch,  1842,  to  take  effect  on 
the  1st  of  August  following ;  and  as  those  rules  adopted  the  then 
^^  present  jmiciice''  of  the  English  Court  of  Chancery,  it  would 
not  probably  be  maintained  by  any  one,  that  changes  made  in 
the  English  practice,  since  that  time,  are  of  any  binding  force, 
or  would  be  recognized  and  acted  upon  by  the  Federal  Courts, 
without  some  further  rule  or  order  of  adoption. 

But  as  great  and  important  changes  and  modifications  have 
been  going  on  in  the  English  courts  for  the  last  five  years,  and 
as  in  1845  the  English  Court  of  Chancery  revised  the  whole  body 
of  their  rules  of  practice,  and  adopted  an  entire  new  code,  I  have 
thought  it  would  be  well,  or  at  least  not  inappropriate,  to  give 
the  orders  of  1845,  as  well  as  those  in  force  in  1842. 

I  annex  hereto,  firstly,  the  orders  of  the  High  Court  of  Chan- 
cery of  England  in  force  on  the  1st  of  August,  1842  ;  and  secondly, 
the  new  and  revised  orders  of  1845,  for  the  convenience  and 
satisfaction  of  those  who  may  wish  to  note  the  changes  and 
modifications  adopted.  —  (Ed.) 


ORDERS  OF  APRIL  3,  1828, 
As  amended  November  2;)d,  ISol. 


Order  I. 
That  every  plaintiff,  avS  well  in  a  country  cause  as  in  a 
town  cause,  shall  be  at  liberty,  tvithout  affidavit^  to  ol)tain 
an  order  for  a  subpoena  returnable  immediately ;  but  such 
subpoena  in  a  country  cause  is  to  be  without  prejudice  to 
the  defendant's  I'ight  to  eight  days'  time  to  enter  hia 
appearance  after  he  has  been  served  with  the  subpoena. 

Order  II. 
That  a  writ  of  subpoena  to  appear^  or  to  appear  and 
anstver^  shall  be  sued  out  for  each  defendant,  except  in 
the  case  of  husband  and  wife  defendants;  and  that  the 
costs  of  all  such*writs  shall  be  costs  in  the  cause. 

Vide  5th  order  of  1833. 

Order  III. 
That  a  defendant  in  a  country  cause,  shall  no  longer  be 
permitted  to  crave  the  common  dedimus ;  but  shall  either 
put  in  his  answer  within  eight  days  after  his  appearance, 
or  shall  obtain  the  usual  orders  for  time. 

Vide  lOth  order  of  1833. 


604  APPENDIX. 


Order  IV. 
Tliat  in  all  cases,  whether  the  defendant's  answer  be 
tiled  in  term  time  or  in  vacation,  the  plaintiff  shall  be 
allowed  two  moiiths  to  deliver  exceptions  to  such  answer; 
l)ut  if  the  exceptions  be  not  delivered  within  the  two 
months,  the  answer  shall  thenceforth  be  deemed  sufficient, 
and  the  plamtift'  shall  have  no  order  to  deliver  exceptions 
nunc  pro  tunc. 

This  order  relates  to  exceptions  for  insvjjiclency  only,  (see  Bradbury 
vs.  Boohcr,  4  Simons,  325)  not  to  exceptions  for  impertinence.     Ibid. 
See  19  th  order. 

Order  Y. 
That  when  exceptions  taken  to  an  answer  for  insuffi- 
ciency are  not  suljmitted  to,  the  plaintiff  may  at  the 
ex]:)iration  of  eight  days  after  the  exceptions  are  delivered, 
but  not  before,  unless  in  injunction  causes^  refer  such 
answer  for  insufficiency ;  and  if  he  do  not  refer  the  same 
within  the  next  six  days,  he  shall  be  considered  as  having 
abandoned  the  exceptions;  in  which  latter  case  such 
answer  shall  be  thenceforth  deemed  sufficient. 

Vide  12th  and  19th  orders.  • 

Where  the  plaintiff  has,  before  answer,  obtained  an  injunction,  and 
when  the  anwer  is  put  in  he  excepts  thereto,  he  can  not  move  to  refer 
the  exceptions  inMantcr,  but  it  seems  that  the  defendant  may  so  move 
where  by  overruling  the  exceptions  he  will  dissolve  the  injunctions. 
6  Madd.  102. 

Order  VI. 
[.1  s  cmiended^  That  if  the  plaintiff  do  not,  within  three 
weeks  after  a  defendant's  second  or  third  answer  is  filed, 


APPENDIX.  605 


refer  the  same  for  insufficiency  on  the  old  exceptions,  such 
answer  sliall  thenceforth  be  deemed  sufficient. 

Vide  12lh  and  19th  orders. 

Order  VII. 
That  if  tlie  plaintiff  do  refer  a  defendant's  second  or 
third  answer  for  insufficiency  on  the  old  exceptions,  then 
the  particular  exception  or  exceptions  to  which  he  requires 
a  further  answer  shall  be  stated  in  the  order. 

Order  VIIT. 
That  if  upon  a  reference  of  excej^tions  the  master  shall 
find  the  ansAver  insufficient,  he  shall  fix  the  time  to  be 
allowed  for  putting  in  a  further  answer,  and  shall  specify 
the  same  in  his  report,  from  the  date  whereof  such  time 
shall  run,  and  it  shall  not  be  necessary  for  the  plaintiff  to 
serve  a  subpcena  for  the  defendant  to  make  a  better 
answer.  And  any  defendant  who  shall  not  put  in  a 
further  answer  within  the  time  so  allowed,  shall  be  in 
contempt,  and  be  dealt  with  accordingly. 

See  ISth  order  of  1833. 

Ordinarily  a  defendant  who  is  in  custody  for  want  of  an  answer,  is, 
on  putting  in  an  answer,  entitled  to  be  discharged  witlwut  waiting  for 
the  report  that  it  is  sufficient.  16  Ves.  418  ;  Farquharson  vs.  Balfour, 
Turn,  and  Russ.  184. 

The  master's  report  shouhl  be  actually  filed  before  any  proceeding 
upon  it  is  taken  by  the  plaintiff',  as,  for  instance,  obtaining  an  order  for 
an  injunction  JVynnc  vs.  Jachson,  2  Sim.  and  Stuart,  226  ;  Rushto/i 
vs.  Troughto7i,  2  Simons,  33. 

The  master  allowed  exceptions  to  an  answer  for  insufficiency,  and 
fixed  a  time  for  putting  in  a  further  answer.  After  that  time  expired, 
the  defendant  moved  for  further  time;   motion  refused,  the  defendant 


606  APPENDIX. 


being  in  contempt  under  this  order  ;  the  vice-chancellor  observing  that 
the  defendant  ought  to  have  applied  for  further  time  before  the  time 
fixed  by  the  master  had  expired.  W?ieat  vs.  Graham,  5  Simons,  570. 
See  19th  order  of  1S33,  by  which  a  povs'^er  is  given  to  the  master  on 
hearing  exceptions  for  insufficiency  to  award  costs. 

Order  IX. 

Tlaut  if  iij)oii  a  reference  of  exceptions  the  answer  be 
certified  sufficient,  it  shall  be  deemed  to  be  so  from  the 
date  of  the  master's  report ;  and  if  the  defendant  submit 
to  answer  without  a  report  from  the  master,  the  answer 
shall  be  deemed  insufficient  from  the  date  of  the  submis- 
sion. 

Order  X. 
That  upon  a  third  answer  being  reported  insufficient,  the 
defendant  shall  be  examined  upon  interrogatories  to  the 
points  reported  insufficient,  and  shall  stand  committed 
until  such  defendant  shall  have  perfectly  answered  such 
interrogatories;  and  shall  pay,  in  addition  to  the  four 
pounds  costs  heretofore  paid,  such  further  costs  as  the 
court  shall  think  fit  to  award. 

Order  XL 

That  no  order  shall  be  made  for  referring  any  pleading 
or  other  matter  depending  before  the  court  for  scandal  or 
im/pertinence^  unless  exceptions  are  taken  in  writing  and 
signed  by  counsel,  describing  the  particular  passages  which 
are  considered  to  be  scandalous  or  impertinent,  nor  unless 
such  order  be  obtained  within  six  days  after  the  delivery 
of  such  exceptions. 

For  the  form  of  exceptions  for  impertinence  under  this  order,  see 
Wagstqff  \&.  Bryan,  1  Russ.  and  My.  28. 


APPENDIX.  607 


It  appears  that  interrogatories  and  depositions  will  not  be  referred  for 
impertinence  alone,  without  scandal.  White  vs.  Fusstll,  I'd  Ves. 
113. 

An  exception  for  impertinence  fails  if  «??j/ y^for/ of  the  passage  in- 
cluded in  it  be  not  impertinent.     1  Russ,  and  My.  28. 

An  answer  to  the  usual  interrogatories  in  a  bill  against  an  executor 
as  to  the  particulars  of  personal  estate,  and  for  what  it  sold,  a  schedule 
annexed  to  the  answer  in  which  every  particular  article  of  personal 
estate  was  set  foi'th,  and  what  it  sold  for,  was,  on  exceptions,  held  to 
be  impertinent ;  it  being  only  necessary  to  state  the  whole  amount  for 
which  it  sold.  The  V.  C.  stating  that  the  defendant  might  have  satis- 
fied himself  by  alleging  that  the  household  furniture  was  sold  by  auc- 
tion at  such  a  time  and  place,  and  by  such  a  person,  and  produced  such 
a  sum.     Beaumont  vs.  Beaumont,  5  Madd.  51. 

Statements  in  an  answer  arc  impertinent  if  they  are  neither  called 
for  by  the  bill,  nor  material  to  the  defence  with  reference  to  the  order 
or  decree  which  may  be  made  on  the  bill ;   and — 

Statements  in  an  answer  to  a  bill  of  revivor,  which  merely  show 
irregularity  and  misconduct  in  the  former  proceedings  in  the  suit,  are 
impertinent.  Wagsta^'  vs.  Bri/an,  1  Russ.  and  My.  28  ;  Devaynes  vs. 
Morris,  1  My.  and  C.  213.     See  also  Mefcalfe\&.  Metcalfe,  1  Keen.  74. 

Upon  the  general  question  of  what  is  and  what  is  not  scandal  and 
impertinence,  see  Alsagcr  vs.  Johnson,  4  Ves.  217  ;  Lord,  St.  John  vs. 
Ladij  St.  John,  11  Ves.  526  ;  Corbett  vs.  Tottenham,  1  Ball  and  B.  59  ; 
Norway  vs.  Roicc,  1  Meriv.  347  ;  Parker  vs.  Fairlie,  1  Sim.  and  St. 
295  ;   15  Ves.  477  ;  2  Madd.  176  ;  5  Madd.  450. 

Bill  filed  for  the  common  injunction  to  stay  proceedings  at  law;  the 
dcfeiidant  referred  the  bill  for  impertinence  ;  the  master  leported  it 
not  to  be  impertinent.  Held  that  the  plaintiff  was  entitled  to  his  injunc- 
tion, as  of  course,  no  answer  having  been  filed.     3  Swanst.  232,  n. 

A  plaintiff"  can  not  refer  an  answer  for  impertinence  after  replication, 
or  an  undertaking  to  speed  the  cause  ;  but  it  is  stated  tluit  he  may 
refer  for  scandal  at  any  time.  3  Swanst.  232,  n.  Sed  quare,  if  not  too 
general — Ed.     See  also  Re  Burton,  1  Russ.  380. 

A  plaintiff  can  not  refer  for  impertinence  an  afBdavit  filed  in  support 
of  a  motion,  if  after  that  affidavit  was  filed,  he  has  filed  any  aflRdavit  in 
opposition  to  the  motion.  Keeling  vs.  lloskins,  2  Russ.  319.  Contra  as 
to  scandal.     See  also  Re  Burton,  1  Russ.  380. 


608  APPENDIX. 

After  a  reference  for  insvjfjcienci/,  an  answer  can  not,  it  seems,  be 
referred  for  impertinence.     Per  Lord  Eldon,  6  Vesey,  458. 

An  answer  was  referred  for  scandal,  on  tlie  motion  of  another  de- 
fendant. Coffin  vs.  Coffin,  6  Ves.  514.  It  seems  also  to  be  competent 
to  a  person,  not  a  party  to  the  record,  to  apply-     Lb. 

Although  it  was  said  by  the  lord  chancellor,  in  J(Jj'<'nj  vs.  McCahe, 
1  Russ.  and  My.  739,  that  it  was  too  late  to  except  to  an  answer  for 
impertinence,  when  the  time  has  expired  after  which,  according  to  the 
new  orders,  the  answer  is  to  be  deemed  sufficient,  the  contrary  was  de- 
cided by  the  V.  C.  in  Bradhunj  vs.  Booker,  5  Simons,  325, 


Order  XII. 

That  when  any  order  is  made  for  referring  an  answer 
for  insufficiency^  or  for  referring  an  answer  or  other 
pleading  or  matter  depending  before  the  court  for  scandal 
or  impertinence.,  the  order  shall  be  considered  as  aban- 
doned, unless  the  party  obtaining  the  order  shall  procure 
the  master's  report  within  a  fortnight  from  the  date  of 
such  order,  or  unless  the  master  shall  within  the  fortnight 
certify  that  a  further  time,  to  be  stated  in  his  certificate,  is 
necessary,  in  order  to  enaljle  liim  to  make  a  satisfactory 
report;  in  which  case  the  order  shall  be  considered  as 
abandoned  if  the  report  be  not  obtained  within  the  further 
time  so  stated ;  and  where  such  order  relates  to  alleged 
insufficiency  in  an  answer,  such  answer  shall  be  deemed 
sufficient  from  the  time  when  the  order  is  to  be  considered 
as  abandoned. 

This  order  was  held  not  to  apply  to  cases  in  bankruptcy.  Ex  j^a'rte 
Chester,  matter  of  Yates,  1  Montague's  Cases  in  Bankruptcy,  17. 

Vide  8th  order  and  19th  order;  et  vide  22d  order  of  1833,  {post) 
as  to  the  mode  of  proceeding  upon  a  reference  to  the  master  for  scandal 
or  impertinence. 


APPENDIX.  609 


Okdeh  XIII. 
[A,9  arnpjndfid.  \  Tluit  after  an  answer  has  been  filed  the 
plaintiff  shall  be  at  liljerty,  before  filing  a  replication,  to 
o])tain,  upon  motion  or  petition  without  notice,  one  order 
for  leave  to  amend  the  bill ;  but  no  further  leave  to  amend 
shall  be  granted  after  an  answer  and  before  i-eplication, 
unless  the  court  shall  be  satisfied  by  aflidavit  that  the 
draft  of  the  intended  amendments  has  been  settled, 
approved  and  signed  l)y  counsel,  and  that  such  amendments 
are  not  intended  to  be  made  for  the  purpose  of  delay  or 
vexation,  but  because  the  same  are  considered  to  be 
material  to  the  case  of  the  plaintiff;  such  afifidavit  to  be 
made  by  the  plaintiff,  or  one  of  the  plaiutifts  where  there 
is  more  than  one,  and  his,  her,  or  their  solicitor,  or  by 
such  solicitor  alone,  in  case  the  plaintiff  or  plaintiffs,  from 
being  abroad  or  otherwise, shall  be  unable  to  join  therein; 
but  no  order  to  amend  shall  be  made  after  answer  and 
before  replication,  either  ^vithout  notice  or  upon  affidavit, 
in  manner  heroin  before  mentioned,  unless  such  order  be 
obtained  within  six  weeks  after  the  answer,  if  there  be 
only  one  defendant,  or  after  the  last  of  the  answers,  if 
there  be  two  or  more  defendants,  is  to  be  deemed  suffi- 
cient. But  this  order  shall  not  extend  to  amendments 
which  are  made  only  for  the  purpose  of  rectifying  some 
clerical  error,  error  in  names,  dates  or  sums;  in  which 
cases,  the  order  to  amend  may  be  obtained  upon  motion 
or  petition  without  notice. 

The  practice  is  now  governed  by  the  IGth  amended  order,  but  the 
following  notes  upon  this,  are  considered  by  the  editor  to  be  ajiplicable 
to  that  order. 

It  was  held  by  the  vice  chancellor  to  be  irregular  to  amend  when 
39 


610  APPENDIX. 


more  than  six  weeks  had  elapsed  from  the  time  when  the  answer  oi  all 
tlie  defendants,  who  were  by  the  bill  stated  to  be  within  the  jurisdiction, 
were  to  be  considered  sufficient,  though  no  answer  had  been  filed  by 
the  party  alleged  to  be  out  of  the  jurisdiction,  against  whom  process 
was  prayed  when  he  should  come  within  the  jurisdiction ;  the  iiarty 
stated  to  he  ovt  of  the  jurisdiction  being,  for  this  pttrposc,  not  con- 
sidered as  a  defendant  on  the  record.  See  The  King  of  Spain  vs.  Hul- 
lett,  1  Russ.  and  My.  7. 

Where,  upon  exceptions  being  allowed,  or  submitted  to,  the  jilaintiff 
moves  to  amend,  and  that  the  defendant  may  answer  the  amendments 
and  exceptions  at  the  same  time,  it  was  held  that  neither  notice  of  the 
motion,  nor  an  affidavit  in  support  of  it,  is  necessary.  Mendizahcl  vs. 
The  King  of  Spain,  V.  C.  24th  March,  1830,  Ed.  MSS.  See  also 
Mendizahel  vs.  Ilullett,  1  Russ.  and  My.  324  ;  Bird  vs.  Hustler,  Ibid, 
325. 

Where,  after  a  replication  had  been  filed,  the  plaintiff  had,  on  spe- 
cial leave,  amended  his  bill  in  such  a  manner  as  to  call  for  an  answer, 
it  was  held  that  he  might  afterwards  obtain,  as  of  course,  xx.  further  order 
to  amend  at  any  time  before  the  answer  to  the  amended  bill  was  put  upon 
the  file.      Wharton  vs.  Swann,  2  My.  and  K.  362. 

See  notes  to  15th  order,  the  19th  order  and  notes,  and  the  20th  order 
of  1833. 

By  the  present  practice  a  plaintiff  may,  before  answer,  obtain  by  mo- 
tion or  petition  of  course,  and  without  notice,  any  number  of  orders  to 
amend  which  he  may  think  fit.  See  Bird  vs.  Hustler,  1  Russ.  and  My. 
325  ;  and  CoUingworth  vs.  Grundy,  2  My.  and  K.  359.  But  this  pro- 
position must  not  be  understood  to  apply  to  those  cases  in  which,  before 
the  new  orders  came  into  operation,  as  now,  a  special  application  for 
leave  to  amend,  even  in  the  first  instance,  is  necessary,  as  in  the 
case  of  a  motion  to  amend  without  prejudice  to  the  common  injunc- 
tion. 

The  plaintiff,  after  the  defendant  had  answered,  amended  by  adding 
another  defendant.  After  that  other  defendant  had  answered,  the  plain- 
tiff again  moved  ex  parte  to  amend,  not  requiring  any  answer  from  the 
original  defendant;  motion  granted  by  the  V.  C,  the  plaintiff  under- 
talcing  not  to  serve  the  original  defendant  with  a  subpoena  to  answer  the 
amendments.     Evans  vs.  Hughes,  5  Simons,  666. 

It  was  held  by  the  L.  C,  that  if  a  defendant  is  added  by  amendment 


ArPENDIX.  611 


after  answer,  no  further  amendment  of  the  1)ill  can  be  made,  even  as 
against  that  defendant,  except  upon  an  apphcation  supported  in  the 
manner  required  hy  this  IStli  order.  The  Attorney  Ciemrol  \:i.  Nether- 
coat,  2  My.  and  C.  G04. 

Amendment  of  a  bill  after  exceptions  allowed  and  not  answered, 
does  not  prejudice  tiie  common  injunction  previously  obtained.  There- 
fore it  is  a  motion  of  course  for  leave  to  amend,  and  that  the  defendant 
may  answer  the  amendments  and  exceptions  together.  Dijijx^r  vs. 
Durant,  3  Meriv.  465;  Aclncy  vs.  Flood,  1  Madd.  449. 

Where,  under  an  order  to  amend,  after  the  defendant  had  answered 
the  original  bill,  the  plaintiff"  amended  the  bill  hij  making  (piitc  a  diffe- 
rent case,  as  where  by  the  original  bill  he  sought  to  set  aside  a  deed,  but 
by  the  amended  bill  he  sought  lo  establish  it.  The  court  ordered  him 
to  pay  the  costs  of  the  original  bill,  and  of  certain  accounts  set  forth  in 
the  answer,  in  compliance  with  the  prayer  of  that  bill,  as  well  as  the 
costs  of  tlic  motion.     Maror  vs.  Dry,  2  Sim.  and  St.  113. 

It  was  said  by  the  court  that  there  was  no  instance  of  a  bill  of  dis- 
covery being  amended  by  adding  parties  as  plaintiff's.  ChoJmondcley 
vs.  Clinton,  2  Meriv.  74. 

After  answer  to  a  bill  of  discovery,  a  motion  to  amend  the  bill,  by 
adding  a  prayer  for  relief,  was  refused  with  costs.  Biitteruorth  vs. 
Bailey,  15  Yes.  358.  See,  however,  what  is  said  in  Lord  Rcdcsd.  Treat. 
p.  201,  4th  ed. 

After  answer  to  a  bill  for  disrorcry  and  relief,  amotion  to  amend  by 
striking  out  the  prayer  for  relief  was  refused.  Earl  Cholmondeley  vs. 
Lord  Clinton,  2  Ves.  and  Bea.  113. 

The  practice  of  amendment^  as  connected  with  exceptioiis  to  the  answer 
for  iiisiffficicncij. 

Exceptions  to  an  answer  held  to  be  waived  by  a  motion  of  course  to 
amend  the  bill ;  the  plaintiff"  should  move  specially  for  liberty  to  amend, 
without  prejudice  to  the  exceptions.  De  La  Torre  vs.  Bcrnalcs,  4 
Madd.  396. 

It  was  held  that  exceptions  to  an  answer  filed  afler  tlie  hill  had  been 
amended,  would  not  be  taken  off"  the  Hie,  if  no  answer  was  required  to 
the  amendments.  Miller  vs.  Whcatlcy,  1  Sim.  29G  ;  et  vide  the  case 
of  Dipper  vs.  Durant,  3  Meriv.  465. 


612  APPENDIX. 


Tke  'pracUcc  of  amendment  in  Lij miction  Causes. 

The  general  opinion  of  the  profession  is,  that  a  plantiff"  may  amend 
after  havino;  obtained  a  special  injunction,  as  in  all  other  cases,  and  that 
such  motion  will  not  prejudice  the  injunction  so  obtained,  but  it  is  clear 
that  a  phiintitr  having  obtained  the  common  injunctions  (i.  e.  to  stay  pro- 
ceedings at  law)  loses  that  injunction  by  obtaining  the  common  order  to 
amend  ;  the  course  that  a  plaintiff",  having  obtained  the  common  injunc- 
tion, and  being  desirous  to  amend  his  bill,  should  adopt  is,  to  apply  by 
special  motion,  on  notice,  to  the  court,  for  liberty  to  amend  without  pre- 
judice to  the  injunction,  and  although  this  application  is  a  special  one, 
it  was  held  by  Lord  Langdale  not  to  be  within  the  jurisdiction  of  the 
master  under  3  and  4  W.  4,  c.  9i,  ss.  13,  14,  by  reason  that  the  plaintiff 
so  applying  to  amend,  applies  for  something  more,  viz  :  that  the  amend- 
ment may  be  without  prejudice  to  the  injunction.  See  llecs  vs.  Ed- 
wards, 1  Keen,  4G5.  In  reference  to  this  subject  it  may  be  useful  to 
draw  the  reader's  attention  to  the  case  oi  Sharp  vs.  Ashton,  3  Ves.  and 
B.  144,  in  which  Lord  Eldon  appears  to  have  settled  the  practice  by 
holding  that  the  plaintiftMn  a  bill  for  an  injunction  to  stay  proceedings 
at  law,  must  state  at  once  the  whole  case  within  his  knowledge,  but 
that  the  court,  though  very  jealous  of  amendment  without  prejudice  to 
the  injunction,  permits  even  re-amendment,  ascertaining  precisely  its 
nature,  and  by  clear  and  positive  affidavit  that  the  plaintiff  had  not  a 
knowledge  of  the  facts,  enabling  him  to  bring  that  case  upon  the  record 
sooner,  and  on  payment  of  costs.  See  also  Turner  vs.  Bazelcy,  2  Ves. 
and  B.  330. 

As  to  amendments  hij  merely  adding  parties,  vide  the  notes  to  the  15th 
order.     As  to  amendments  which  arc  allowed  on  tlie  hearing. 

The  court,  notwithstanding  the  new  orders,  will,  on  the  hearing  of 
a  cause,  permit  it  to  stand  over,  and  give  the  plaintiff'  leave  to  amend 
by  adding  the  necessary  parties ;  and  in  a  case  in  which  a  specialty 
creditor  filed  a  bill  for  the  payment  of  his  debt  out  of  his  debtor's  real 
estate,  the  court,  holding  upon  the  opening  of  the  plaintiff's  case  that 
no  decree  could  be  made,  unless  the  specialty  creditor  sued  on  behalf 
of  himself  and  all  other  the  creditors  of  the  deceased,  gave  the  plaintiff' 
liberty  to  amend  by  so  framing  his  bill.  Johnson  vs.  Conipton,  4  Sim. 
47.     See  also  Attorney  General  vs.  Newcombe,  14  Ves.  1. 


APPENDIX.  613 


Where  money  had  been  secured  by  a  mortgage  for  a  term,  and  by 
a  trust  for  sale  of  tho  fee,  and  the  mortgagee  had  filed  a  bill  praying 
for  a  sale  only,  and  upon  the  vice  chancellor  holding  on  the  hearing, 
that  upon  the  bill  so  framed  the  plaintiff  was  not  entitled  to  foreclose 
the  fee,  nor,  unless  he  prayed  for  it,  to  a  foreclosure  of  the  term,  gave 
the  plaintiff",  on  the  hearing,  leave  to  amend  his  bill  by  praying  lor  such 
foreclosure  of  the  term.     Kerrick  vs.  tiaj'enj,  7  Sim.  317. 

A  bill  in  relation  to  a  married  woman's  separate  property  had  been 
filed  in  the  name  of  the  husband  and  wife.  The  court  held  that 
this  must  be  considered  as  the  suit  of  the  husband,  and  refused  to  en- 
tertain it  in  that  form,  but  gave  leave  iijr  the  cause  to  stand  over, 
with  liberty  to  the  plaintiffs  to  amend  by  introducing  a  next  friend 
for  the  wlf('  in  the  place  of  the  husband,  and  striking  out  the  name 
of  tlu^  husband  as  a  co-plaintiff,  and  security  for  costs  up  to  the  time 
of  such  amendment.  Oicden  vs.  CamjiheJl,  V.  C,  April  28,  1837. 
Ed.  MkSS. 

But  it  has  been  held  that  under  an  order  made  at  the  hearinor,  that 
the  cause  should  stand  over,  with  liberty  to  the  plaintiff"  to  amend  his 
bill  by  adding  parties  as  he  should  be  advised,  or  showing  why  he  was 
unable  to  bring  all  proper  parties  before  the  court;  the  plaintiff" is  not 
entitled  to  add  parties  as  co-plaintiffs,  and  intioduce  new  statements 
and  charges  in  the  bill  relating  to  such  co-plaintiff"s.  Milligan  vs. 
Mitchell,  1  My.  and  C.  433.  See  also  Bierderman  vs.  Seymour,  2  My. 
andC.  117. 

Order  XIV. 

That  every  order  for  leave  to  amend  the  bill  shall 
contain  an  midertaking  by  the  plaintitt*  to  amend  the  l.ill 
within  three  weeks  from  the  date  of  the  order ;  and  in 
deftinlt  thereof  such  order  ^hall  become  void.,  and  the  cause 
shall,  ct'sfar  as  relates  to  any  ^notion  to  dismiss  the  hill  for 
want  of  prosecution.,  stand  in  the  same  situation  as  if  such 
order  had  not  been  made. 

Vide  19th  order,  and  the  notes  thereto. 


614  APPENDIX. 


Order  XV. 
That  after  a  rejflkation  has  been  filed,  the  phiintiff  shall 
not  be  permitted  to  withdraw  it  and  to  amend  the  bill 
without  a  special  order  of  the  court  for  that  purpose, 
made  upon  a  motion,  of  which  notice  has  been  given; 
tlie  court  he ing  satisfied  h>j  affidavit  that  the  matter  of  the 
proposed  amendment  is  material^  and  could  not^  tvitli  rea- 
sonahle  ddigence^  hctve  been  sooner  introduced  into  the  hill. 

The  special  application  prescribed  by  this  order  must  now  be  made 
to  the  master,     Seej^ost,  pp.  66,  82. 

See  Wharton  vs.  Swann,  2  My.  and  K.  362,  in  which  it  was  held  that 
where,  after  a  replication  had  been  filed,  and  the  plaintiff'  had,  on 
special  leave,  amended  his  bill  in  such  a  manner  as  to  call  for  an  an- 
swer, he  might  afterwards  obtain,  as  of  course,  a  further  order  to  amend 
at  any  time  before  the  answer  to  the  amended  bill  was  put  upon  the 
file. 

The  above  mentioned  15th  order  does  not  apply  to  an  amendment 
by  adding  parties  only.     Brattle  vs.  Waterman,  4  Sim.  125. 

An  application  for  leave  to  amend  by  adding  parties,  even  after  re- 
plication, is  a  motion  of  course,  and  should,  therefore,  be  made  to  the 
court  and  not  to  the  master.     Ed.  et  vide  next  note. 

A  plaintiff"  may  amend  by  adding  parties  after  replication  without 
withdrawing  it ;  so  he  may  amend,  without  withdrawing  his  replica- 
tion, by  stating  that  a  defendant  already  on  the  record  Jills  another 
character,  such  as  a  personal  representative,  where  such  personal  re- 
presentative is  a  necessary  party,  and  the  fact  has  not  been  previously 
stated  by  the  bill.     See  Andrec  vs. ,  Dick,  768. 

The  reason  why  an  amendment  by  adding  j^artics  merely  in  any  stage 
of  the  cause  before  the  hearing  is  permitted,  is,  that  as  the  court  invaria- 
bly allows  a  cause  to  stand  over  at  the  hearing  where  a  want  of  proper 
parties  appears,  and  gives  the  plaintiff"  liberty  to  amend  by  adding 
parties,  it  would  be  absurd  that  he  should  be  compelled  to  set  down 
and  bring  on  his  cause  to  bo  heard  for  the  mere  purpose  of  having  the 
objection  taken  on  the  hearing,  and  ol)taining  leave  to  amend,  through 
such  a  circuity    of  proceeding  :  and  the  reason  why  an  amendment 


APPENDIX.  015 


after  replication  by  adding  parties  may  be  made  without  withdrawing 
the  replication  is,  that  it  is  never  willidrawn  wliere  the  pluititiff  avails 
himself  of  the  leave  to  amend  by  adding  parties  given  him  by  the  court 
upon  a  cause  standing  over  for  that  purpose.     Ibid. 

It  appears  that  where  a  plaintiff  obtains  leave  to  amend  by  merely 
adding  parties,  he  will  be  held  strictly  to  that  particular  amendment, 
and  to  the  insertion  of  the  matter,  if  any,  necessary  to  show  the  mate- 
riality of  such  new  parties;  thus,  where  a  cause  had  gone  off'  at  the 
hearing  for  want  of  parties,  with  liberty  to  the  plaintiff"  to  amend  by 
adding  the  necessary  parties,  and  the  plaintiff",  under  the  order  giving 
that  liberty,  extended  the  amendment  by  striking  out  many  charges  in 
the  bill  which  the  former  defendant  had  answered,  such  charges  were 
ordered,  on  the  application  of  that  defendant,  to  be  restored,  that  the 
court  might  give  him  the  costs  incurred  by  such  part  of  the  bill  as  the 
plaintiff' had  waived.     Bullock  vs.  Perkins,  Dick,  110. 

When  a  cause  stands  over  with  liberty  to  amend,  a  motion  mav 
afterwards  be  made  by  the  defendant  to  accelerate  the  amendment  of 
the  bill,  and  for  the  costs  of  the  application,  and  the  court  will  order 
the  plaintiff' to  amend  within  a  limited  time,  and  if  the  notice  of  motion 
asks  for  them,  to  pay  the  defendant's  costs  of  the  application.  Cox  vs. 
AUingham,  3  Madd.  393. 

Order   XVI. 

[As  amended^  That  wliere  the  answer  of  a  defendant  is 
to  be  deemed  sufficient,  whether  it  be  in  term-time  or  in 
vacation,  if  the  pLiintiif  or  plaintiff  sliall  not  i)roceed  in 
tlie  cause,  the  defendant  shall  be  at  liberty,  after  the 
expiration  of  two  months,  to  move,  on  notice,  that  the  bill 
be  dismissed  witli  costs  for  Avant  of  prosecution;  and  the 
bill  shall  accordingly  be  dismissed  \\\i\\  costs,  unless  the 
plaintiff  or  ]>laintifts  shall  api)ear  upon  such  motion,  and 
give  an  undertaking  to  file  a  replication,  and  serve  a 
subpcena  to  rejoin ;  and  in  case  he  requires  a  connnission 
to  examine  witnesses,  shall  obtain  and  serve  an  order  for 
such  commission,  within  three  weeks  from  the  date  of  such 


616  APPENDIX. 


undertaking :  or  unless  the  plaintiff  or  plaintiffs,  without 
filing  a  replication,  shall  appear  upon  such  motion,  and 
give  an  undei'taking  to  hear  the  cause  as  against  the 
defendant,  making  the  motion  uj)on  bill  and  answer :  or 
unless  it  shall  appear  tliat  the  plaintiff  or  plaintiffs,  is  or 
are  imable  to  proceed  in  the  cause,  by  reason  of  any  other 
defendant  or  defendants  not  having  sufficiently  answered 
the  bill,  and  that  due  diligence  has  been  used  to  obtain 
a  sufficient  answer  or  answers,  from  such  other  defendant 
or  defendants  ;  in  which  case,  the  court  shall  allow  to  the 
plaintiff  or  plaintiffs,  such  further  time  for  proceeding  in 
the  cause  jis  shall  appear  to  the  court  to  be  reasonable. 
And  in  case  the  plaintiff  or  plaintiffs  do  appear  upon  the 
motion  to  dismiss,  and  give  the  undertaking  to  file  a 
rephcation,  and  take  the  other  proceedings  consequent 
thereon,  herein  before  required,  then  all  the  rules  and 
regulations,  with  respect  to  the  commission  and  the  return 
thereof,  and  the  settmg  down  the  cause  for  hearing,  and 
the  rights  of  the  defendant  with  respect  to  the  commission, 
in  case  of  any  default  on  the  part  of  the  plaintiff,  which 
are  particularly  expressed  in  the  next  order,  shall  apply 
to  all  cases  under  this  order. 

A  defendant  may  move  to  dismiss  a  bill  for  want  of  prosecution 
pending  an  injunction,  and  also  pending  a  notice  given  by  him  of  a 
motion  to  dissolve  an  injunction  which  the  plaintiff  had  obtained.  Far- 
quharson\^.  Pitcher,  3  Russ.  383;   Naylor  vs.  Naylor,  16  Ves.  127. 

If  a  notice  of  a  motion  to  dismiss  a  bill  for  want  of  prosecution  is 
given  for  too  early  a  day,  the  defect  is  not  cured  by  the  motion  being 
accidentally  postponed  to  a  day  when  it  might  have  been  regularly 
made.     De  Geneve  vs.  Ilannam,  1  Russ.  and  My.  494. 

If  a  defendant,  who  is  in  a  situation  to  dismiss  a  bill  for  want  of 
prosecution  after  application  filed,  does  not  avail  himself  of  his  right, 
but  permits  the  plaintiff  to  file  interrogatories  and  examine  witnesses, 


APPENDIX.  617 


he  can  not  afurwards  dismiss  the  hill  liir  want  id'  prusr-culiun,  and  an 
order  of  dismissal  subsequently  obtained  may  be  discharged  iur  irre- 
gularity.    Femes  vs.  ITutckinson,   1  lluss.  and  My.  22. 

Upon  a  motion  to  dismiss  for  want  of  prosecution,  the  delay  in  pr*;- 
secuting  the  suit  was  satisfactorily  accounted  fur.  The  court  refused 
to  make  any  order  upon  the  motion  or  to  require  the  plaintifl'  to 
undertake  to  speed  the  cause.  Vent  vs.  Paeey,  3  Sim.  382  ;  sed  vide 
Barber  vs.  Kavanagli,  (^w*^  p.  /^/3)  and  Partington  vs.  BaiUie,  (jjost 
p.  56). 

If  between  the  time  of  giving  a  notice  of  motion  to  dismiss  for  want 
of  prosecution  and  the  making  of  the  motion,  the  plaintiff"  obtains  an 
order  to  amend,  the  plaintiff",  must  pay  the  costs  of  the  motion  to 
dismiss,  but  no  order  will  be  made  upon  it.  Davenport  vs.  Maimers, 
2  Sim.  514.     Peacock  vs.  Sierier,  5  Sim.  553. 

But  it  seems,  that  if  the  amendment  is  one  which  requires  no  fuilher 
answer,  it  will  not  operate  against  a  motion  to  dismiss  for  want  of 
prosecution.  Branston  vs.  Carter,  2  Sim.  458.  Hollings  vs.  Kirhy, 
V.  C.  17  July,  1835.     Ed.  MSS. ;   1  Turn.  &  Russ.  310. 

If  the  plaintiff"  ,^/c*  a  rcjjJicdtion  after  a  notice  of  motion  lo  dismiss 
for  want  of  prosecution,  but  l)ef()rc  llie  motion  is  made,  it  (the  motion) 
is  not  sustainable,  but  the  defendant  is  entitled  to  the  costs  of  it. 
Spurrier  vs.  Bennett,  4  Madd.  39. 

A  motion  to  dismiss  a  bill  to  j'erpctuate  tcstiinomj  for  want  of  prose- 
cution, is  irregular.  The  proper  application  is,  that  the  plaintiffs  may 
proceed  loilhin  a  given  time,  or  mau pay  the  difendant  his  costs.  IVrig/tt 
vs.  Tat/tam,  2  Simons,  459. 

An  application  to  dismiss  a  bill  of  discovery  for  want  of  prosecution, 
is  irregular  —  the  proper  course  to  be  pursued  by  the  defendant  for 
payment  of  his  costs  being  an  ex  parte  a])plication  by  motion  for  an 
order  for  the  taxation  and  payment  thereof;  but  this  order  should  not 
be  applied  for  until  the  time  allowed  to  the  plaintiff"  for  taking  e.xcep- 
ticns  to  the  answer  for  insufficiency  has  expired.  See  4  Ves.  746 ;  5 
Ves.  86;  1  Madd.  344;  but  if  the  plaintiff"  obtains  an  order  to  amend 
the  bill  of  discovery,  which  may  be  done  either  to  obtain  a  fuller 
discovery,  or,  if  the  case  appearing  on  the  answer  will  warrant  the 
proceeding,  by  adding  to  the  bill  a  prayer  for  relief  (see  Lord  Kedesd. 
Treat.  201,  4th  ed  ) ;  the  defendant  cannot,  it  seems,  obtain  the  com- 


618  APPENDIX. 


nion  order  for  his  costs,  until  after,  in  the  first  case,  the  amended 
bill  shall  have  been  answered,  and  the  time  for  excepting  to  such 
answer  expired  ;  or,  in  the  second  case,  before  the  hearing  of  the 
cause,  unless  the  bill  should  become  dismissible  for  want  of  prosecu- 
tion. 

The  difficulty  in  getting  in  the  answer  of  a  party  stated  by  the  bill 
to  be  07it  of  the  jurisdiction  of  the  court,  would  seem  to  form  no  excuse 
for  the  plaintiff's  not  proceeding,  and  consequently  be  no  answer  to  a 
motion  to  dismiss.  See  The  King  of  Spain  vs.  Hullett,  1  Russ.  & 
My.  7. 

An  order  to  dismiss  a  bill  for  want  of  prosecution,  after  an  ahate- 
ment,  although  irregular,  is  not  to  be  regarded  as  a  nullity ;  consc- 
(piently,  that  order  must  be  discharged  before  the  plaintiff  can  obtain 
an  order  lo  revive  the  suit.     Boddij  vs.  Kent,  1  Meriv.  3G1. 

The  order  made  upon  the  plaintiff's  meeting  a  motion  to  dismiss, 
by  giving  the  usual  undertaking  to  speed  the  cause,  is  to  the  following 
effect,  viz  :  "  That  the  plaintiff  do  file  a  replication,  serve  subpoenas 
to  rejoin,  and  obtain  and  serve  order  for  a  commission  to  examine 
witnesses,  if  he  rerp/ire  such  commission  within  three  weeks  from  this 
time,  and  give  rules  to  produce  witnesses,  and  pass  publication  in 
term  [the  term  next  hut  one  after  the  order'],  and  set  down  the  cause 
for  hearing,  and  serve  suhpamas  to  hear  judgment  in  term  next 

[the  third  term  after  the  date  of  the  order],  or  in  default  thereof,  that 
the  plaintiff's  bill  do  stand  dismissed  out  of  this  court  with  costs  to  be 
taxed  by  the  master  in  rotation,  in  case  the  parties  differ. " 

The  plaintiff's  solicitor,  before  he  instructs  counsel  to  give  this 
undertaking,  should  consider  the  effect  of  it  with  regard  to  the  situation 
of  the  parties  and  the  state  of  the  record ;  for  where  the  bill  is  so 
framed  that  it  is  necessary  to  add  parties,  it  will  in  most  cases  be 
difficult,  and  in  some  impossible,  to  bring  up  the  new  parties  lo  the 
same  level  of  proceeding,  upon  which  he  will  be  obliged  to  place  the 
former  defendants  by  his  undertaking  to  speed.  In  a  case  so  cir- 
cumstanced, the  plaintiff's  solicitor  should  by  affidavit  account  for  the 
delay  in  bringing  the  new  parties  before  the  court,  and  show  the  state 
of  the  record,  and  the  necessity  of  adding  parties.  Upon  the  court 
being  satisfied  on  these  points,  it  will  neither  dismiss  the  bill,  nor  put 
the  plaintiff  upon   any  undertaking  to  speed  the  cause,  but  will  order 


APPENDIX.  6 1 9 


the  motion  to  .stand  over,  giving  the  plaintiff,  by  the  same  order,  liberty 
to  make  the  necessary  amendment.  IlolVivgs  vs.  Kirhhi/,  \.  C,  11  th 
March,  1835.  Ed.  MSS.  In  this  case  the  plaintifl",  pursuant  to  the 
leave  of  the  court,  amended  the  bill,  by  adding  new  parties;  and  the 
defendants,  who  liad  previously  moved  to  dismiss,  a  i^cw  davs  after 
answering  the  amendments,  renewed  the  motion  ;  but  the  vice  chan- 
cellor, iiudcr  tlic  lirrinustancrs,  directed  it  again  to  stand  over  till  the 
first  day  of  the  following  Michaelmas  term.  HoUings  vs.  Kirkhy,  V. 
C,  17th  July,  1835.     Ed.  MSS. 

Where  a  cause  had  come  on  to  be  heard,  and  had  stood  over  witli 
liberty  for  the  plaintiff  to  amend  hi/  adding  y^rt/-//V.v,  and  he  had 
accordingly  amended,  but  j)roceeded  no  further,  it  was  held  that  the 
original  definulant  might  move  to  dismiss  the  bill  for  want  of  pi-osecu- 
tion,  and  that  it  was  not  necessary  to  set  the  cause  down  again  for 
that  purpose.     Mitchcl  y?,.  Loundc.s,  2  Cox,  15.     Scd  fjnnre. 

As  a  sole  plaintiff" or  defendant,  or  jnoche'ni  amy,  or  one  of  several 
plaintiffs  or  defendants,  in  a  bill  for  relief  may  die  or  become  bank- 
rupt, or  insolvent,  before  the  hearing,  it  may  be  useful  to  show  the 
distinctions  which  exist  in  those  cases,  and  ihe  pioceedings  which  can 
be  regularly  taken  by  a  defendant  who  may  be  desirous  of  urging  on 
or  dismissing  the  suit  for  want  of  prosecution. 

1st,  Where  a  sole  -plaintiff  becomes  bankrupt  or  insolvent  after 
ansivcr. 

The  proper  proceeding  is  a  motion  by  the  defendant,  upon  notice 
served  on  the  assignee  of  the  plaintiff  [and,  since  the  new  orders,  I 
should  think  on  the  bankrupt],  that  the  assignee  may  file  a  supple- 
mental bill  within  a  given  time,  (generally  a  fortnight,)  or  that  the  bill 
may  stand  dismissed  without  costs.  Randall  vs.  Muniford,  IS  Ves. 
424.     Porter  vs.  Cox,  5  Madd.  80. 

f/^ow  the  hanlcruptcij  of  a  sole  idainl  iff,  in  an  injunction  hill. 

Lord  Eldon  stated  the  practice  to  be  not  to  dissolve  the  injunction, 
but  that  the  defendant  might  move  that  the  assignees  should  come 
in,  or  tlie  injunction  be  dissolved.  See  18  ^'es.  427  ;  see  also  2  Dick. 
471. 

But  where  a  perpetual  injunction  had  been  decreed,  it  was  held  not 
to  be  necessary  upon  an  abatement    to  revive,  merely  to  keep  that 


620  APPENDIX. 


injunction  on  foot.      Yeoman  vs.  Kilvington,  1  Dick.  351  ;  Askew  vs. 
Tou-/iscnd,  2  ib.  471. 

2d.   Where  one  of  several  plaintiffs  becomes  bankrupt  or  insolvent. 

The  practice  was  settled  by  the  vice  chancellor,  that  the  defendant 
may  make  the  common  motion  to  dismiss  for  want  of  prosecution  with 
costs.     Craddick  vs.  Masson,  1  Sim.  501 ;  vide  also  IS  Yes.  426. 

3d.  When  a  defendant  becomes  a  bankrupt. 

It  has  been  held  that  he  may,  notwithstanding  his  bankruptcy,  move 
to  dismiss  for  want  of  prosecution  with  costs.  Monteith  vs.  Taylor,  9 
Ves.  615.     See  also  Booth  vs.  Smith,  5  Simons,  639. 

4th.  Where  one  of  several  plaintiff's  dies,  even  before  answer. 

A  defendant  may  move  that  the  surviving  plaintiffs  may  be  ordered 
to  revive  the  suit  within  a  given  time,  or  that  the  bill  may  be  dismissed 
with  costs.  See  Adamson  vs.  Hall,  1.  Tui'n.  258.  And  where  one  of 
several  plaintiffs  dies  after  answer,  such  a  molion  is  regular.  See 
Wood  vs.  Bethmie,  2d  June,  1S20;  Reg.  Lib.  B.  1819,  1183.  The 
editor  conceives  that  the  same  proceeding  may  be  taken  when  a  suit 
abates  by  the  death  of  a  co-defendant. 

The  difference  in  the  course  of  proceeding  on  the  part  of  a  defend- 
ant in  the  several  cases  of  death  and  bankruptcy,  arises  from  the  dis- 
tinction that  death  ordinarily  works  an  abatement,  but  that  bankruptcy 
or  insolvency  merely  renders  the  suit  defective  for  tcant  of  proper  par- 
ties.    See  IS  \^es.  426  ;   Booth  vs.  Smith,  5  Simons,  639. 

On  the  death  of  a  prochein  amy. 

A  married  woman  being  plaintiff,  and  her  j^rochein  amy  having  died, 
it  was  ordered  that  she  should  name  a  new  prochein  amy  within  two 
months,  or  that  in  default  the  bill  should  be  dismissed,  and  the  defend- 
ant's costs  paid  out  of  the  fund  in  court,  Barlee  \&.  Barlce,  1  Simon, 
and  St.  100. 

After  a  decree  the  proclicin  amy  of  an  infant  plaintiff  died.  On  mo- 
tion of  a  defendant,  a  reference  to  the  master  was  directed  to  appoint 
unolhc.r  jfrochei /I  amy.     Bracey  vs.  Sandiford,  3  Madd.  468. 

It  is  not  the  ordinai-y  practice  to  restore  a  bill  which  has  been  regu- 
larly dismissed  for  want  of  prosecution,  but  this  may  be  done  under 
circumstances.  Ilanriam  vs.  South  London  Water  Works,  2  Meriv.  63. 
Thus  where  a  replication  had  not  been  filed  through  mistake,  the  court 
restored  the  bill,  notwithstanding  an  order  to  dismiss.  Attorney 
General  vs.  Fellowcs,  Mad.  and  Geld.  111. 


APPENDIX.  621 


Okdkk  XVII. 
[.'I.v  ame)i<Jed.\  That  where  the  phiintift' files  a  rejjlica- 
tioii,  without  having  been  served  with  a  notice  of  motion  to 
dismiss  the  hill  for  want  of  prosecution^  he  shall  serve  the 
subpcena  to  rejoin ;  and  in  case  he  requires  a  commission  to 
examine  witnesses,  shall  oljtain  and  serve  an  order  for  such 
commission,  within  three  weeks  from  the  filini>:  of  the  repli- 
cation ;  and  such  commission  shall,  at  the  latest,  be  returna- 
ble on  the  first  return  of  the  second  term  then  next  following, 
and  the  plaintifl' shall  give  his  rules  to  produce  witnesses,  and 
pass  publication  at  the  latest  in  the  same  term,  and  shall  set 
down  his  cause  for  hearing,  and  duly  serve  the  sul)p(ena 
to  hear  judgment  returnable  in  the  succeeding  term ;  and 
if  the  plaintift'  shall  make  default  herein,  then,  upon  appli- 
cation by  the  defendant,  upon  notice  of  motion,  the  plain- 
tiff's l)ill  shall  stand  dismissed  out  of  court  witli  costs, 
unless  the  court  shall  make  special  order  to  the  contrary. 
And  in  case  the  plaintiff  serves  a  subprenato  rejoin,  within 
three  w^eeks  after  filing  the  replication,  but  does  not  obtain 
and  serve  an  order  for  a  commission  to  examine  witnesses 
within  that  time,  then  the  defendant  shall  be  at  liberty, 
without  notice,  to  obtain  an  order  for  a  commission  to 
examine  witnesses,  returnable  at  the  like  period  as  the 
plaintiff  is  entitled  to,  pursuant  to  this  order,  and  shall 
have  the  carriage  of  such  commission.  And  if  the  plaintiff' 
obtains  an  order  for  and  sues  out  a  commission,  and  neglects 
to  execute  and  return  the  same,  at  or  within  the  time  stated 
in  this  order,  the  defendant  shall  be  entitled  to  an  order 
as  before  stated,  for  a  commission  returnable  on  the  last 
return  of  the  term  following  that  which  is  allowed  to  the 
plaintiff  by  this  order,  for  the  return  of  his  commission. 


622  APPENDIX. 


And  when  any  commission  issues  pursuant  to  tliis  order, 
or  the  last  foregoing  order,  the  parties  sliall  ha^'e  liberty  to 
execute  the  same  in  term  time,  and  publication  shall  stand 
enlarged  until  the  commission  shall  be  returnable ;  and  the 
plaintiff  shall  be  at  liberty  to  set  down  the  cause,  in  the 
mean  time,  without  the  necessity  of  inserting  such  du'ec- 
tions  in  the  order  for  the  commission. 

Okder  XVIII. 
[^4*  amended.']    That  publication  shall  not  be  enlarged, 
except  upon  -special  application  to  the  court,  made  upon 
notice  supported  by  affidavit,  and  at  the  cost  of  the  party 
applying,  unless  otherwise  ordered  by  the  court. 

The  practice  is  now  governed  in  part  by  the  stat.  3  and  4  Wm.  4  c. 
9  J,  s.  13,  and  the  20th  order  of  1833  {j^ost). 

Order  XIX. 
[As  amended^  That  the  time  which  occurs  between  the 
last  seal  after  Trinity  term  and  the  first  seal  1)efore  Michael- 
mas term,  and  l)etween  the  last  seal  after  Michaelmas  term 
and  the  first  seal  before  Hilary  term,  shall  not  be  reckoned 
in  the  computation  of  time  wliich  is  allowed  to  a  party  for 
amending  any  bill,  for  filing,  delivering,  or  referring  ex- 
ceptions to  any  answer,  or  for  obtaining  a  master's  report 
upon  any  exceptions.  Atfy  Gen.  vs.  Jones ^  5  Sim.  246  ; 
Arujell  vs.  We-stcomhe,  1  My.  &  C.  48. 

Order  XX. 
That  service  on  the  clerk  in  court,  of  any  suT)poena  to 
rejoin,  or  to  answer  an  amended  bill,  or  to  hear  judgment, 
shall  be  deemed  good  service. 


APPENDIX.  623 


Order  XXT. 
That  the  order  nisi  for  eoiifiniiiiif^  a  report  may  be  o]> 
tained  upon  petition  as  A\-ell  as  1)}'  motion,  and  that  service 
thereof  upon  the  clerk  in  court  of  any  party,  shall  be 
deemed  good  service  u])()ii  snrh  pai-tv. 

Order  XXII. 
That  every  notice  of  motion,  and  every  petition,  notice 
of  which  is  necessary,  shall  ])e  served  at  least  two  clear 
days  l)efore  the  hearing  of  such  motion  or  petition. 

'Order  XX HI. 
That  the  order  nisi  for  dissohang  the  common  injnuc- 
tion,  may  be  obtained  upon  petition  as  well  as  l)y  motion, 
and  that  every  such  order  be  served  two  dear  days  at  least 
before  the  day  upon  which  cause  is  to  be  shown  against  dL^- 
solving  the  injunction. 

Order  XXIV. 
[^Ls-  amended.']  That  when  a  defendant  in  contempt  for 
want  of  answer,  obtains,  u})on  filing  his  answer,  the  com- 
mon order  to  l)e  discharged  as  to  his  contem]it,  on  pay- 
ment or  tender  of  the  costs  thereof,  or  the  plaintiff  accepts 
the  costs,  ^^'ithout  order,  he  shall  not  by  such  acce])tance 
be  compelled,  in  the  event  of  the  answer  l^eing  insufficient, 
to  re-commence  the  process  of  contempt  against  the  de- 
fendant, but  shall  ]>('  at  liberty  to  take  up  the  process  at 
the  point  to  \\ liicli  he  had  before  proceeded. 

Order  XX\'. 
That  no  Avitncss  to  be  examined  l)efore  either  of  the 
examinei-s  for  any  ])arty  in  a  cause,  be  in  future  i>ro(luced 


624  APPENDIX. 


at  the  seat  of  the  clerk  in  court  for  the  opposite  party ; 
but  that  a  notice  in  writing!:,  containins;  the  name  and 
description  of  the  witness,  be  served  there  as  heretofore. 

Order  XXVI. 

That  tlie  examiner  who  shall  take  the  examination  in 
chief  of  any  witness,  shall  be  at  liberty  to  take  his  cross- 
examination  also. 

Order   XXVII. 

That  where  the  same  solicitor  is  employed  for  two  or 
more  defendants,  and  separate  answers  shall  have  been 
filed,  or  other  proceedings  had,  by  or  for  two  or  more 
defendants  separately,  the  master  shall  consider,  in  the 
taxation  of  such  solicitor's  bill  of  costs,  either  between 
party  and  party,  or  between  solicitor  and  client,  whether 
such  separate  answers  or  other  proceedings  were  necessary 
or  projDer ;  and  if  he  is  of  opinion  that  any  part  of  the 
costs  occasioned  thereby  has  been  unnecessarily  or  im- 
properly incurred,  the  same  shall  be  disallowed. 

Order  XXVIII. 

That  where  a  plaintiff  obtains  a  decree  with  costs,  there 
the  costs  occasioned  to  the  plaintiff  hy  the  insufficiency  of 
the  answer  of  any  defendant^  shall  be  deemed  to  be  ])art  of 
the  plaintiff's  costs  in  the  cause,  such  sum  or  sums  being 
deducted  therefrom  as  w^ere  paid  by  the  defendant,  ac- 
cording to  the  course  of  the  court,  upon  the  exceptions  to 
the  said  answer  ])eing  su])mitted  to  or  allowed. 

Vide  the  further  provision  contained  in  the  19tli  order. 


APPENDIX.  625 


Okder  XXIX. 
That  where  the  i:)laiiitift*  is  directed  to  pay  to  the  de- 
fendant tlie  costs  of  the  suit,  there  the  costs  occasioned  to 
a  defendant  hy  any  amendment  of  the  hill  shall  Ije  deemed 
to  be  part  of  such  defendant's  costs  in  the  cause  (except 
as  to  any  amendment  Avliich  may  have  been  made  hy 
special  leave  of  the  court,  or  which  shall  appear  to  have 
been  rendered  necessary  by  the  default  of  such  defendant)  ; 
but  there  shall  l^e  deducted  from  such  costs  any  sum  or 
sums  which  may  have  been  paid  by  the  i^laintift',  according 
to  the  course  of  the  court,  at  the  time  of  any  amend- 
ment. 

Order  XXX. 
That  when  upon  taxation,  a  plaintiff  who  has  obtained 
a  decree  with  costs  is  not  allowed  the  costs  of  any  amend- 
ment of  the  bill,  upon  the  ground  of  its  having  been 
unnecessarily  made,  the  defendant's  costs,  occasioned  by 
such  amendment,  shall  be  taxed,  and  the  amount  thereof 
deducted  from  the  costs  to  be  paid  by  the  defendant  to 
the  plaintiff. 

Order  XXXI. 
That  upon  the  allotvance  of  any  plea  or  demurrer^  the 
plaintiff  or  plaintiffs  shall  pay  to  the  defendant  or  de- 
fendants the  taxed  costs  thereof ;  and  when  such  plea  or 
demurrer  is  to  the  whole  l)ill,  then  the  further  taxed  costs 
of  the  suit  also ;  unless  in  the  case  of  a  plea  the  plaintiff 
or  plaintiffs  shall  undertake  to  reply  thereto,  and  then  the 
costs  shall  be  reserved,  unless  the  com-t  shall  think  lit  to 
make  other  order  to  the  contrary. 
40 


526  APPENDIX. 


The  plaintiff  set  clown  a  plea  to  be  argued,  and  afterwards  moved 
that  it  might  not  stand  in  the  paper,  and  then  obtained  an  order  to 
amend  the  bill ;  the  defendant  under  these  circumstances,  was  held  to 
be  entitled  to  taxed  costs.     Jones  vs.  Watticr,  4  Sim.  128. 

Order  XXXII. 
That  upon  the  overruling  of  any  plea  or  demurrer^  the 
defendant   or   defendants   shall   pay   to   the   plaintiff  or 
plaintiffs  tlie   taxed  costs  occasioned  thereby,  unless   the 
court  shall  make  other  order  to  the  contrary. 

When  a  defendant  puts  a  demurrer  on  record,  and  also  demurs  ore 
tenus,  if  the  demurrer  on  record  is  overruled,  but  the  demurrer  ore  tenus 
is  allowed,  the  defendant  must  pay  the  costs  of  the  demurrer  on  record, 
unless  the  court,  at  the  time,  makes  other  order  to  the  contrary ;  and, 
Semhle,  the  court  will  not  be  disposed  to  make  such  other  order.  Mor- 
timer \s.  Fraser,  2  Mylne  and  Craig,  173. 

A  witness,  on  the  overruling  of  his  demurrer,  is  liable  to  pay  the 
costs  as  a  defendant,  by  analogy  to  this  32d  order.  Sawyer  vs.  Birch- 
more,  3  My.  and  K.  572. 

Order  XXXIII. 
That  when  two  counsel  appear  for  the  same  party  or 
parties,  upon  the  hearing  of  any  cause  or  matter,  and  it 
shall  appear  to  the  master  to  have  been  necessary  or 
proper  for  such  party  or  parties  to  retain  two  counsel  to 
appear,  the  costs  occasioned  thereby  shall  be  allowed, 
although  both  of  such  counsel  may  have  been  selected 
from  the  outer  ha/r. 

Order  XXXIV. 
That  when  a  cause  which  stands  for  hearing  is  called 
on  to  be  heard,  but  cannot  be  decided  by  reason  of  a  want 
of  parties,  or  other  defect  on  the  part  of  the  plaintiff,  and 


APPENDIX.  627 


M  therefore  stTiich  out  of  the  paper^  if  tlie  same  cause  Is 
ajraiii  sot  down,  tlie  defendant  or  defendants  shall  ])e 
allowed  the  taxed  costs  occasioned  l)y  the  first  setting 
down,  althomjh  he  or  they  do  not  ohtain  tlie  co-s-t-s  of  the 
suit 

A  cause  was  called  on  to  be  heard  ;  the  defendant's  counsel  took  an 
objection  for  want  of  parties,  upon  wliich  it  was  ordered  to  stand  over, 
with  the  usual  liberty  given  to  amend  by  adding  the  necessary  parties. 
Such  amendment  was  afterwards  made,  and  the  cause  again  set  down 
forbearing;  upon  an  application  ex  j'cirtc  by  the  plaintiff's  counsel  to 
advance  the  cause,  the  M.  R.  (Sir  John  Leach)  made  an  order  accord- 
ingly, and  added  that  he  would  for  the  future  make  the  same  order  in 
every  similar  case,  llattenhury  vs.  Fenton,  Rolls,  April,  1S33.  Ed. 
MSS.       • 

Order  XXXV. 
That  where  a  cause  being  in  the  paper  for  hearing,  is 
ordered  to  be  adjourned  upon  payment  of  the  costs  of  the 
day^  there  the  party  to  pay  the  same,  whether  before  the 
lord  high  chancellor,  the  master  of  the  rolls,  or  the  vice- 
chancellor,  shall  pay  the  sum  of  ten  pounds^  unless  the 
court  shall  make  other  order  to  the  contrary. 

Order  XXXVI. 
That  whenever  upon  the  hearing  of  any  cause  or  other 
matter,  it  shall  aj)pear  that  the  same  cannot  conveniently 
proceed,  ))y  reason  of  the  solicitor  for  any  party  having 
neglected  to  attend  personally,  or  by  some  proper  pei-son 
on  his  behalf,  or  having  omitted  to  deliver  any  paper 
necessary  for  the  use  of  the  court,  and  which  according  to 
its  practice  ought  to  have  been  delivered,  such  solicitor 
shall  personaUy  pay  to  all  or  any  of  the  j^arties  such  costs 
as  the  court  shall  think  fit  to  award. 


628  APPENDIX. 


It  may  be  stated  as  a  general  rule,  that  where  either  of  the  parties  in 
a  suit  is  made  liable  to  the  payment  of  costs,  or  has  actually  paid  costs, 
through  the  gross  negligence  or  misbehaviour  of  his  solicitor,  the  court 
will,  upon  motion,  order  such  solicitor  in  the  former  case  to  pay  the 
costs  instead  of  his  client,  and  in  the  latter  to  reimburse  liini.  2  Hullock 
on  Costs,  485,  and  cases  there  cited.  Wi/ait's  Prac.  Reg.  397 ;  1  P. 
W.  593. 

Order  XXXVII. 

That  the  sworn  clerks  of  the  court  and  the  waiting 
clerks  shall  not  be  entitled  to  receive  any  fees  for  attend- 
ance in  court,  except  in  cases  where  they  shall  actually 
attend,  and  where  their  attendance  shall  be  necessary. 

Order  XXXVIII. 
That  where  any  cause  which  is  set  down  to  be  heard, 
either  in  the  court  of  the  lord  chancellor,  or  in  the  court 
of  the  master  of  the  rolls,  shall  be  afterwards  set  down  to 
be  heard  in  the  other  of  the  said  two  courts,  there  the 
solicitor  for  the  plaintiff  shall  certify  the  fact  to  the 
registrar  of  the  court  where  the  cause  was  first  set  down, 
who  shall  cause  an  entry  thereof  to  be  made  in  his  book  of 
causes,  opposite  to  the  name  of  such  cause ;  and  the  solicitor 
for  the  plaintiff  shall  be  allowed  a  fee  of  six  shillings  and 
eight-pence  for  so  certifying  the  fact,  if  he  shall  certify  the 
same  within  eight  days  after  the  said  cause  is  so  set  down 
a  second  time. 

Order  XXXIX. 

That  where  any  cause  shall  become  abated,  or  shall  be 
compromised,  after  the  same  is  set  down  to  be  heard  in 
either  of  the  said  two  courts,  the  solicitor  for  the  plaintiff 


APPENDIX.  629 


shall  also  certify  the  fact,  as  the  case  may  be,  to  the  registrar 
of  the  court  where  the  cause  is  so  set  down,  who  shall  in 
like  manner  cause  an  entry  thereof  to  be  made  in  his  cause- 
book,  and  the  solicitor  for  the  plaintiff  shall  Ik;  allowed 
the  same  fee  of  six  shillings  and  eight-pence  for  such 
certificate,  if  he  shall  certify  the  fact  as  soon  as  the  same 
shall  come  to  his  knowledge. 

Order  XL. 
That  the  penal  sum  in  the  bond   to  be  given   as   a 
security  to  answer  costs  by  any  plaintift'  who  is  out  of  the 
jurisdiction  of  the  court,  be  increased  from  forty  pounds 
to  one  hundred  pounds. 

Order  XL  I. 

That  the  deposit  upon  exceptions  to  a  master'^s  report 
shall  be  increased  ten  pounds^  to  be  paid  to  the  adverse 
party,  if  the  exceptions  are  overruled ;  in  which  case  the 
exceptant  shall  also  pay  the  further  taxed  costs  occasioned 
by  such  exceptions,  unless  the  court  shall  otherwise  order ; 
but  in  case  the  exceptant  shall  in  part  succeed,  the  deposit 
shall  be  dealt  with,  and  costs  shall  be  paid  as  the  com't 
shall  direct. 

Where  one  general  exception,  consisting  of  several  distinct  objections 
which  are  specified  as  the  grounds  of  the  exception,  is  taken  to  a  re- 
port in  favor  of  a  title,  and  the  court  overrules  the  exception  as  to 
some  of  the  objections,  and  allows  it  as  to  others,  the  deposite  will  be 
divided.  Wliitton  vs.  Pcacodi,  3  My.  and  K.  325  ;  sed  vide  the  V,  C.'s 
order  in   Ward  vs.  F'ltzhurgh,  7  Sim.  42, 

The  V.  C.  decided,  tliat  where  the  exception  to  an  answer  for  insuffi- 
ciency embraced  several  interrogatories,  which  it  alleged  were  insuffi- 
ciently answered,  and  the  master  had  reported  the  answer  to  the  whole 
of  the  interrogatories  embraced  by  such  exception  to  be  insufficient' 


630  APPENDIX. 


and  the  court  on  exceptions  to  the  report  had  held  that  the  defendant 
had  sufficiently  answered  the  first  question  comprised  in  the  exception 
for  insufficiency,  but  had  not  sufficiently  answered  the  other  questions 
embraced  by  the  exception  for  insufficiency,  that  the  exception  to 
the  master's  report  might  be  allowed  in  part,  and  disallowed  in  part, 
although  such  allowance  in  part,  and  disallowance  in  part,  applied  to 
the  same  exception  for  insufficiency,  and  to  the  same  exception  to  the 
master's  report.     Amor  vs.  Fcaron,  12th  July,  1834.     Ed.  MSS. 

Order  XL II. 
That  the  deposit  upon  every  ])etition  of  a^ypeal  or  re- 
Jiearing^  be  increased  to  twenty  pounds^  to  be  paid  to  the 
adverse  party  when  the  decree  or  order  appealed  from  is 
not  varied  in  any  material  point,  togetlier  with  the  further 
taxed  costs  occasioned  by  the  appeal  or  rehearing,  unless 
the  cowrt  sluill  otherwise  order. 

Order  XLIII. 
That  for  the  purpose  of  enabling  all  persons  to  obtain 
precise  information  as  to  the  state  of  any  cause,  and  to  take 
the  means  of  preventing  improj^er  delay  in  the  progress 
thereof,  any  clerk  in  court  shall,  at  the  request  of  any  per- 
son, whether  a  party  or  not  in  the  suit  or  matter  inquired 
after,  procure  and  furnish  a  certificate  from  the  Six  Clerks' 
office,  specifying  therein  the  dates  and  general  description 
of  the  several  proceedings  which  have  been  taken  in  any 
cause  in  the  said  office,  whether  such  clerk  in  court  be  or 
not  concerned  as  clerk  in  court  in  the  cause  ;  and  that  he 
shall  be  entitled  to  receive  the  sum  of  three  shillings  and 
fourpence  for  such  certificate,  and  no  more. 

Order  XLIV. 
That  whenever  a  person  idIio  is  not  a  party  appears  in 
any  proceeduig,  either  before  the  court  or  before  the  mas- 


APPENDIX.  631 


ter,  service  upon  the  solicitor  in  London,  l)y  wliom  such 
party  appears,  whether  such  solicitor  act  as  princij)al  or 
agent,  shall  Ije  deemed  good  service,  except  in  matters  of 
contempt  requiring  j)ersonal  service. 

OllDEH  XLV. 

That  clerical  mistakes  in  decrees  or  decretal  orders^  or 
errors  arising  from  any  accidental  slip  or  omission,  may  at 
any  time  before  enrollment  Ije  corrected  upon  petition^  with- 
out the  form  and  ex]jense  of  a  reheaiing. 

This  order  applies  only  to  decrees  or  decretal  orders;  it  appears  to 
have  been  unnecessary  to  extend  the  advantage  of  it  to  other  cases, 
for  Lord  Eldon  allowed  a  clerical  mistake  in  the  title  of  an  order  for  a 
sequestration  to  be  amended,  by  inserting  the  words  ''  and  others." 
See  Loivton  vs.  Colchester,  2  Meriv.  395. 

Where,  by  mistake,  sums  of  money  paid  into  court  under  the  decree, 
were  included  in  the  balances  reported  due  from  the  defendant,  and 
the  decree  on  further  directions  ordered  those  balances  to  be  paid 
into  court,  it  was  held  that  the  mistake  could  not  be  rectified  without 
a  rehearing  of  the  cause  on  the  latter  decree.  BrooJcfeld  vs.  Bradley, 
2  Sim.  &  St.  64.  See  also  7  Ves.  293;  12  Ves.  456;  ihid.  458. 
Wesionc  vs.  Haggerstone,  Coop.  Rep.  134.  Hawker  vs.  Duncomhe,  2 
Madd.  R.  391 ;  3  Swanst.  234;   1  Russ.  475. 

The  decree,  amongst  other  things,  directing  that  the  parties  should 
produce  before  the  master  all  books,  papers,  &c.,  the  words,  "  as  the 
master  shall  direct,"  were  on  motion  added.     5  Madd.  121. 

Order  XL VI. 
That  every  application  to  stay  proceedings  upon  any 
decree  or  order  which  is  appealed  from,  be  made  first  to  the 
judge  who  pronounced  the  decree  or  order. 

Vide  the  note  to  the  next  order. 


632  APPENDIX. 


Order  XL VII. 
That  every  application  for  the  new  trial  of  any  issue  at 
law  directed  by  a  judge  of  this  court,  be  first  made  to  the 
judge  ^clio  directed  s^ich  issue. 

It  was  held  that  a  motion  for  a  new  trial  must  be  made  before  the 
same  jurisdiction  which  directed  the  former  trial,  although  the  judge, 
who  had  directed  the  former  trial  when  vice  chancellor,  had  since 
resio-ned  that  office,  and  been  appointed  M,  R.,  which  latter  office  his 
honor  held  at  the  time  of  making  the  motion  for  a  new  trial.  Footner 
vs.  Figis,  2  Sim.  319.  In  other  words,  this  order  applies  to  the  office, 
and  not  to  the  person  of  the  judge.  See  also  Rcece  vs.  Reece,  1  My.  & 
C.  372. 

Order  XLVIII. 
That  where  any  decree  or  order  referring  any  matter  to 
a  master  is  not  brought  into  the  master's  office  within  two 
months  after  the  same  decree  or  order  is  pronounced,  there 
any  party  to  tlie  cause^  or  any  otlier  party  interested  in  the 
matter  of  the  reference^  shall  be  at  liberty  to  apply  to  the 
courts  by  motion  or  petition,  as  he  may  be  advised,  for  the 
purpose  of  expediting  the  prosecution  of  the  said  decree  or 

order. 

Order  XLIX. 

That  every  master  shall  enter  in  a  book  to  be  kept  by 
him  for  that  purpose,  the  name  or  title  of  every  cause  or 
matter  referred  to  him,  and  the  time  when  the  decree  or 
order  is  brought  into  his  office,  and  the  date  and  descrip- 
tion of  every  subsequent  step  taken  before  him  in  the  same 
cause  or  matter,  and  the  attendance  or  non-attendance  of 
the  several  parties  on  each  of  such  steps,  so  that  such  book 
may  exhibit  at  one  view  the  whole  course  of  proceeding 
which  is  had  before  him  in  each  particular  cause  and  matter. 


APPENDIX.  633 


Order  L. 
Tliat  upon  tlie  bringing  in  of  every  decree  or  ordei-,  tlie 
solicitor  bringing  in  tlie  same  shall  take  out  a  warrant  aj). 
pointing'  a  time,  wliicli  is  to  be  settled  by  the  master,  for 
the  purpose  of  the  master  taking  into  con-nderation  the 
matter  of  the  said  decree  or  order ^  and  shall  serve  the  same 
upon  the  clerks  in  court  of  the  respective  parties,  or  upon 
the  parties  or  their  solicitors  in  cases  where  they  shall  have 
no  clerks  in  court. 

Order  LI. 
That  at  the  time  so  appointed  for  considering  the  mat- 
ter of  the  said  decree  or  order,  tlie  master  shall  proceed  to 
regulate^  as  far  as  may  he^  the  Tnanner  of  its  execution  j  as, 
for  example,  to  state  what  parties  are  entitled  to  attend 
future  proceedings,  to  direct  the  necessary  advertisements, 
and  to  point  out  which  of  the  several  proceedings  may  be 
properly  going  on  pari  pass-v.,  and  as  to  what  particular 
matters  interrogatories  for  the  examination  of  the  parties 
appear  to  be  necessary,  and  Avhether  the  matters  requii'ing 
evidence  shall  be  proved  by  affidavit  or  by  examination  of 
witnesses  ;  and  in  the  latter  case,  if  necessary,  to  issue  his 
certificate  for  a  commission ;  and  if  the  master  shall  think 
it  ex]:)edient  so  to  do,  he  shall  then  fix  a  certain  time  or 
certain  times  within  ^^  liicli  parties  are  to  take  any  certain 
proceeding  or  proceedings  before  him. 

It  seems  that  if  the  master  receives  affidavits,  and  they  are  not 
objected  to  on  the  other  side,  the  report  cannot  be  objected  to  on  the 
ground  that  the  w^itnesses  ought  to  have  been  examined  upon  interro- 
gatories.    Morgan  vs.  Lewis,  1  Newl.  Pr.  333  n. 


634  APPENDIX. 


Order  Lll. 
That  upon  any  mihsequent  attendance  befoTe  him  in  the 
same  cause  or  matter,  the  master,  if  he  tliinks  it  expedient 
so  to  do,  shall  fix  a  certain  time  or  certain  times  within 
which  the  parties  are  to  take  any  other  proceeding  or  pro- 
ceedings before  hira. 

Order  LIII. 
Tliat  where  some  or  one,  but  not  all,  the  parties  do 
attend  the  master  at  an  appointed  time,  whether  the  same 
is  fixed  by  the  master  personally  or  upon  a  warrant,  there 
the  master  shall  be  at  liberty  to  proceed  ex  parte^  if  he 
thinks  it  expedient,  considering  the  nature  of  the  case,  so 
to  do. 

Order  LIV. 
That  where  the  master  has  proceeded  ex  parte^  such  pro- 
ceeding shall  not  in  any  manner  be  reviewed  in  the  master's 
office,  unless  the  master,  upon  a  special  application  made  to 
him  for  that  purpose  by  a  party  who  was  absent,  sliall  he 
mtisfied  that  he  iva-s-  not  guilty  of  ivilful  delay  or  neglir 
gence^  and  then  only  npon  payment  of  all  costs  occasioned 
by  his  non-attendance;  such  costs  to  be  certified  by  the 
master  at  the  time,  and  paid  by  the  party  or  his  solicitor 
before  he  shall  be  permitted  to  proceed  on  the  warrant  to 
review. 

Order  LV. 
That  where  a  proceeding  fails,  l)y  I'cason  of  the  non- 
attendance  of  any  party  or  parties,  and  the  master  does  not 
think  it  expedient  to  proceed  ^^<2r^  there  the  master  shall 


APPENDIX.  635 


be  at  liberty  to  certify  wliat  amount  of  costs,  if  any,  lie  tliinks 
it  reasonable  to  Ix-  [>ai<l  to  tlic  party  or  parties  attending, 
by  the  absent  party  or  parties,  or  by  Ids  or  their  solicitor- 
or  solicitors,  or  clerk  or  clei-ks  in  conrt  })ersonally,  as  the 
master  in  his  discretion  shall  think  fit ;  and  upon  motion  or 
petition,  Avithout  notice,  the  court  will  make  order  for  the 
payment  of  such  costs  accordingly. 

Order  LVI.  ^ 
That  where  the  party  actually  prosecutmg  a  decree  or 
order,  does  not  proceed  before  the  master  with  due  dili- 
gence, there  the  master'  shall  be  at  hberty,  upoii  the  wppli- 
cation  of  any  other  jpavty  interested^  either  as  ajKorty  to  the 
suit  or  as  one  tvho  has  come  in  and  estaUished  his  claim 
before  the  master  under  the  decree  or  order ^  to  commit  to 
him  the  prosecution  of  the  said  decree  or  order ;  and  from 
thenceforth,  neither  the  party  making  default,  nor  his  soli- 
citor, shall  be  at  liberty  to  attend  the  master  as  the  pro- 
secutor of  the  said  decree  or  order. 

Order  LVII. 

That  upon  any  application  ijiade  by  any  'person  to  the 
court,  the  master,  if  required  by  the  person  making  the 
application,  shall,  in  as  short  a  manner  as  he  conveniently 
can,  certify  to  the  court  the  several  proceedings  A\hicli  shall 
have  lieen  had  in  his  office  in  the  same  cause  or  matter, 
and  the  date  thereof. 

Order  LVIII. 
That  every  nnister  shall  be  at  libert}',  without  order,  to 
proceed  in  all  matters  de  die  in  diem^  at  his  discretion. 


636  APPENDIX. 


Order  LIX. 
That  every  warrant  for  attendance  before  tlie  master 
shall  be  considered  as  ijeremtory^  and  the  master  sliall  be 
at  liberty  to*  continue  the  attendance  beyond  the  hour  and 
during  such  time  as  he  thinks  proper,  and  shall  be  em- 
powered to  increase  the  fee  for  the  solicitor's  attendance 
in  propoi-tion  to  the  time  actually  occupied ;  and  in  case 
the  master  shall  not  be  attended  by  the  solicitor  or  a  com- 
petent person  on  behalf  of  the  sohcitor  of  any  party,  the 
master  shall  in  such  case  disallow  the  usual  fee  for  the  soli- 
citor's attendance,  taking  care  either  in  allowing  an  increased 
fee,  or  disallowing  the  usual  fee,  to  mark  his  determination 
in  his  attendance  book,  and  also  on  the  warrant  for  attend- 
ance. 

Order  LX. 
That  where  by  any  decree  or  order  of  the  court,  books, 
papers,  or  writings  are  directed  to  be  produced  before  the 
master  for  the  purpose  of  such  decree  or  order,  it  shall  be 
in  the  discretion  of  the  master  to  determine  what  books, 
papers  or  writings  are  to  be  produced,  and  when  and  for 
hoiv  long  they  are  to  be  left  in  his  office  ;  or  in  case  he  shall 
not  deem  it  necessary  that  such  books,  papers,  or  writings 
should  \)Q  left  or  deposited  in  his  office,  then  he  may  give 
directions  for  the  inspection  thereof  by  the  parties  requiring 
the  same,  at  such  time  and  in  such  manner  as  he  shall  deem 
expedient. 

The  common  direction  that  a  party  shall  produce  before  the  master 
all  books  and  papers  relating  to  the  matters  in  question  as  the  master 
shall  direct,  entitles  the  master  to  require,  by  his  warrant,  that  all  such 
books  and  papers,  generally,  shall  be  left  in  his  office ;  and  a  refusal 
to  leave  them  in  pursuance  of  such  a  warrant,  is  a  disobedience  to  the 


APPENDIX.  637 


order  of  the  court  which  has  directed  their  production.  Shirley  vs. 
Earl  Ferrers,  1  My.  and  C.  304. 

It  was  lidd  tliat  a  ])t'rson  not  being  a  party  in  the  cause  might 
present  a  petition  in  tlie  cause  to  have  deeds  belonging  to  him,  which 
had  been  brouglit  into  the  master's  office  under  the  decree  delivered 
out  to  him.     Marriott  vs.  White,  1  Sim.  and  .St.  17. 

The  editor  has  added  the  principal  cases,  1st,  in  which  the  court  has 
ordered,  and  2dly,  in  which  it  has  refused  to  order,  the  production  of 
documents. 

1st.   Cases  ill  tvhich  the  Court  has  ordered  the  Production. 

The  object  of  the  suit  was  to  set  aside  certain  long  leases  granted 
in  1740,  and  which  became  vested  in  the  defendant,  who  had  made 
family  settlements  of  them,  which  he  admitted  to  be  in  his  custody ; 
held  that  the  plaintiff' was  entitled  to  a  production  of  these  documents. 
Attorney  General  vs.  Ellison,  4  Sim.  238. 

The  plaintiff' was  trustee  for  sale  of  real  estates  ;  the  decree  directed 
the  estates  to  be  sold,  and  the  title  deeds  (which  were  in  possession  of 
the  plaintiff''s  solicitor  for  the  purposes  of  the  suit)  to  be  deposited. 
The  solicitor  refused  to  produce  them,  and  claimed  a  lien  on  tliemfor 
his  costs  of  the  suit ;  but  the  court  ordered  him  to  deposit  them. 
Baker  vs.  Henderson,  4  Sim.  27.  See  also  Fencott  vs.  Clarke,  6 
Sim.  8. 

Where  books  and  papers,  the  joint  j))'operty  of  the  defendants,  and 
of  other  jpar ties,  not  before  the  court,  were  admitted  by  the  answer  to 
be  in  the  custody  of  a  third  party  as  the  common  agent  of  all,  an 
order  was  made  ujjon  such  agent  to  permit  an  insj)ection  by  the 
plaintiff's,  against  the  consent  of  those  owners  who  were  not  parties ; 
on  the  princi})le  that  the  court  had  a  right  to  give  the  plaintiff'  what- 
ever access  to  the  documents  the  defendant  himself  would  be  entitled 
to.      Walhurn  vs.  Ingilby,  1  My.  and  K.  61,  79. 

Upon  a  bill  of  discovery  in  aid  of  an  action  to  try  whether  the 
plaintiff''s  house  was  within  the  limits  of  a  certain  parish,  and,  there- 
fore, liable  to  the  parochial  rates ;  the  court  ordered  the  defendants, 
the  parish  officers,  to  produce,  for  the  plaintiff''s  inspection,  the  rate- 
books, account-l)ooks,  orders,  and  other  documents  which  related  to 
the  7natter  in  question,  and  were  admitted  by  their  answer  to  be  in  their 


638  APPENDIX. 


possession ;  the  defendants  not  denying  (as  the  lord  chancellor  ob- 
served) that  the  documents  in  question  contained  matters  connected 
with  the  plaintiff"'s  right,  and  by  which  that  right  would  be  made 
to  appear.     Burrell  vs.  Nicholson,  1  My.  and  K.  680. 

A  defendant  to  a  hill  of  discovery  in  aid  of  an  action,  was  ordered 
by  the  V.  C.  to  produce  -at  the  trial  documents  set  forth  in  the 
schedule  to  his  answer  as  being  in  his  custody.  Croiclcy  vs.  Perlcins, 
5  Sim.  552.  But  this  case  appears  to  have  been  overruled  by  the  L. 
C,  in  Brown  vs.  Thornton,  1  My.  and  C.  243,  ct  vide  post. 

Where  an  agreement  was  sent  by  a  vendor  to  his  attorney,  with  a 
letter  written  at  the  bottom  directing  him  to  prepare  a  technical 
agreement,  and  the  vendor  afterwards  refused  to  perform  it,  and  the 
attorney  would  not  deliver  the  agreement  to  the  purchaser  for  the 
purpose  of  getting  it  stamped,  contending  that  it  was  a  private  letter 
to  him,  the  court  on  motion  ordered  it  to  be  delivered  for  that  purpose, 
Sug.  on  Vendors,  87,  9th  ed. 

Where  a  defendant  made  statements  in  his  answer  cufficient  to  show 
that  he  had  incurred  penalties,  and  it  appeared  that  the  defendant 
could  not  be  further  damnified  by  the  production  of  documents  referred 
to  in  it,  the  V.  C.  held  that  the  defendant  could  not  refuse  to  produce 
those  documents  on  the  ground  that  they  afibrded  evidence  of  his 
being  subject  to  penalties.     Eicing  vs.  Oshaldiston,  6  Sim.  608. 

A  deed  in  the  custody  of  a  purchaser  for  valuable  consideration 
which  the  bill  impeached  for  fraud,  was,  under  special  circumstances, 
ordered  to  be  pi'oduced,  as  where  tlie  plaintiff  by  the  bill  alleged  that 
certain  suspicious  circumstances  appeared  on  the  back  of  the  deed, 
which  tended  to  show  that  the  execution  of  it  was  obtained  by  fraud, 
and  the  defendant  did  not,  hy  his  answer,  deny  that  he  had  notice  of 
those  circumstances.     Kennedy  vs.  Green,  6  Sim.  6. 

A  voluntary  deed  belonging  to  the  defendant  which  the  bill  im- 
peached for  fraud,  and  which  was  in  the  custody  of  the  defendant's 
solicitor,  v-h.o  claimed  a  lien  on  it,  was  ordered  to  be  produced  for  the 
plaintiff's  inspection,  after  it  had  been  proved  by  the  defendant,  and 
publication  had  passed.  Fencott^a.  Clarke,  6  Sim.  8.  This  is  another 
decision  that  the  lien  of  a  solicitor  will  not  operate  to  prevcrit  the  produc- 
tion of  documents  in  the  jn-ogress  of  a  suit  on  the  motion  of  his  client's 
opponent: 


APPENDIX.  639 


If  a  (Tcfcndant  in  his  answer  states  the  effect  of  documents  admitted 
to  bo  in  his  possession,  hiit  fur  his  greater  certainty  therehy  craves 
leax^c  to  refer  to  the  documents  themselves  when  j>roiluced,  tlic  phiintiff'  is 
entitled  to  move  foi*  their  production,  although  the  ansicer  positively 
swears  that  they  form  part  of  the  defendant'' s  title,  and  in  no  way  assist 
or  7nahc  out  the  title  of  the  plaintiff.  Ilardman  vs.  Ellames,  2  My.  and 
K.  732. 

To  a  bill  of  discovery  of  stock  standing  in  the  name  of  llic  jjlaintiff's 
late  father,  cither  alone  or  jointly  for  20  years  before,  and  at  his  death, 
and  for  an  inspection  of  the  Bank  of  England  books,  containing  the 
entries  of  such  stock,  the  bank  in  their  answer  set  forth  an  account  of 
the  stock,  but  declined  to  set  forth  a  list  of  the  books  containing  the 
entries.  Held  that  they  were  not  exempted  from  the  liability  to 
produce  their  books,  and  therefore  ought  to  set  forth  a  list  of  them. 
Heslop  vs.  Bank  of  England,  G  Sim.  192. 

The  plaintiff  was  held  to  be  entitled  to  the  production  of  documents 
referred  to  in  the  answer,  and  admitted  to  be  in  the  custody  of  the 
defendant,  although  an  injunction  obtained  by  the  plaintiff  had  been 
dissolved  on  the  ground  that  the  contract  which  the  bill  sought  to 
enforce  was  illegal.     Expte.  Smith,  1  Svvanst.  7. 

Where  a  defendant  admits  books  in  the  West  Indies  to  be  in  his 
possession,  custody,  or  power,  the  court  will  order  him  to  bring  them 
here  within  a  reasonable  time ;  and  if  they  are  not  brought,  will  con- 
sider it  the  same  as  if  he  had  them  hero,  in  the  first  instance,  and  had 
refused  to  produce  them.     Per  Lord  Eldon,  Turn.  Rep.  190. 

Papers  belonging  to  a  defendant  were  held  to  be  in  his  custody, 
possession,  or  power,  although  they  were  in  the  West  Indies.     Ibid. 

A  bill  of  discovery  was  filed  by  the  directors  of  an  insurance  com- 
pany, in  aid  of  their  defence  to  an  action  brought  by  the  defendant  to 
recover  the  amount  of  the  sum  secured  by  a  policy  of  assurance 
effected  on  the  life  of  a  person  who  died  shortly  after  the  date  of  the 
policy.  The  bill  alleged  that  the  declaralion  on  the  basis  of  which 
the  insurance  had  been  effected  was  untrue ;  and  it  contained  the 
usual  charge,  that  the  defendant  had  in  his  possession  documents  by 
which  the  truth  of  the  matters  alleged  in  the  bill  would  appear.  The 
defendant  admitted  that  he  had  in  his  possession  the  various  documents 
enumerated  in  the  first  schedule  to  his  answer,  but  he  said  that  since 


640  APPENDIX. 


the  death  of  the  person  whose  life  was  insured,  he  had,  by  reason  of 
certain  information,  contemplated  the  bringing  his  action  against  the 
plaintiffs,  if  they  should  dispute  their  liability  to  pay  the  amount  of  the 
sum  secured  by  the  policy,  and  that  the  documents  contained  informa- 
tion as  to  evidence  which  could  be  procured  on  the  defendant's  behalf, 
and  that  the  producing  the  same,  or  permitting  the  plaintifts  to  inspect 
the  same,  might  disclose  the  names  of  witnesses  intended  to  be 
examined,  and  evidence  intended  to  be  given  on  behalf  of  the  defendant 
in  the  action  which  he  had  brought  against  the  plaintiffs,  and  he 
submitted  that  he  ought  not  to  be  compelled  to  produce  such  docu- 
ments,  or  any  of  them.  But  Lord  Langdale  held  that  the  defendant 
could  not  protect  himself  from  producing  documents  communicated 
by  or  to  parties  who  stood  in  no  confidential  relation  to  him,  on  the 
gi'ound  that  their  production  might  disclose  the  names  of  witnesses, 
and  evidence  intended  to  be  given  at  the  trial,  and  that  he  was  bound 
to  produce  all  the  documents  enumerated  in  the  schedule,  except  the 
letters  written  to  and  from  his  solicitors,  the  statements  for  the  opinions 
of  counsel,  and  the  opinions  of  counsel  thereon.  Storey  vs.  Lord 
George  Lennox,  1  Keen,  341 ;  and  this  decision  was  afterwards  affirmed 
by  Lord  Cottenham  on  appeal.     See  1  Mylnc  and  Craig,  525. 

The  following  case  may  be  considered  as  throwing  additional  light 
on  this  doctrine  :  A  demurrer  put  in  by  a  witness  examined  by  the 
plaintiffs,  on  the  ground  that  he  had  been  the  solicitor  of  some  of  the 
defendants,  and  that  the  interrogatory  required  the  disclosure  of 
confidential  communications,  was  overruled,  the  witness  being  bound 
to  produce  letters  communicated  to  him  from  collateral  quarters  to 
which  the  interrogatory  pointed,  and  to  answer  questions  seeking 
information  as  to  matters  of  fact,  as  distinguished  from  confidential 
communications.     Sawyer  vs.  Birchviorc,  3  My.  and  K.  572. 

2dhj.   Cases  in  which  the  Court  has  refused  to  order  the  p-oduction 

of  Documents. 

The  court  will  not  compel  the  production  of  documents  for  the 
mere  purpose  of  enabling  the  plaintiff  to  inform  himself  of  the  nature 
or  materials  of  the  defendant's  defence.  See  Curling  vs.  Perring,  2 
My.  and  K.  380 ;  2  Sim.  and  St.  300 ;  2  Sim.  489  ;  3  Sim.  396 ;  4 
Sim.  46L 


APPENDIX.  641 


A  defendant  will  not  be  ordered  to  produce  papers  containing 
confidential  communications  between  him  and  his  solicitor  ;  or  between 
?iis  country  solicitor  and  town  solicitor,  made  in  the  relation  oj" solicitor 
and  client,  during  the  progress  of  the  suit,  or  with  reference  to  it 
previous  to  its  commencement.     Hughes  vs.  Biddulj'h,  4  Russ.  190. 

A  plaintiff  was  held  not  to  be  entitled  to  the  production  of  a  letter 
admitted  by  the  defendant  to  be  in  his  possession,  but  which  the 
defendant  stated  was  written  by  him  to  his  solicitor,  and  directed  the 
solicitor  to  take  the  opinion  of  counsel  upon  the  question  in  dispute 
between  the  parties.      Vent  vs.  Pacey,  4  Russ.  193. 

The  court  will  not  oi'der  a  defendant  to  produce  letters  which  passed 
between  him  and  his  solicitor,  in  the  relation  of  solicitor  and  client,  in 
the  lirogrcss  of  the  cause,  or  with  reference  to  it  previously  to  its  being 
instituted,  or  which  contain  legal  advice.  Garland  vs.  Scott,  3  Sim. 
396. 

Motion  for  the  production  of  the  correspondence  referred  to  in  the 
answer  between  the  solicitor  of  the  defendants  and  a  person  not  a  party 
to  the  suit,  refused  by  the  master  of  the  rolls,  his  honor  observing  that 
the  correspondence  having  taken  place  after  the  dispute  which  was 
the  subject  of  the  litigation  between  the  parties  had  arisen,  formed  no 
'  part  of  the  plaintiff's  title  ;  and  added,  that  if  the  right  of  inspecting 
documents  were  carried  to  the  length  contended  for,  it  would  be 
impossible  for  a  defendant  to  write  a  letter  for  the  purpose  of  obtaining 
information  on  the  subject  of  a  suit,  without  the  liability  of  having  the 
materials  of  his  defence  disclosed  to  the  opposite  party.  Curling  vs. 
Ferri?ig,  2  My.  and  K.  380. 

The  defendants  had  brought  an  action  against  the  plaintiffs  to 
recover  a  sum  alleged  to  be  due  for  town  dues  ;  the  plainlifis  filed 
their  bill,  alleging  that  the  defendants  had  in  their  custody  cases  for 
the  opinion  of  counsel,  by  which  it  would  appear  that  the  defendants 
had  no  right  to  levy  the  dues,  and  also  various  charters,  deeds,  &c., 
by  which  the  truth  of  the  statements  in  the  bill  would  appear;  the 
defendants  adniittcil  in  llieir  answer  tliat  they  had  in  their  custody 
se\era\  cases,  two  of  which  were  prepared  many  years  ago,  and  without 
reference  to  the  existing  proceedings  ;  but  which  contained  mistaken 
representations  as  to  the  nature  of  their  title  to  the  dues,  and  the  rest 
of  which  cases  were  prepared  j)cnding,  or  in  contemplation  of,  the  existing 
41 


642  APPENDIX. 


proceedings,  and  that  they  also  had,  in  theii"  custody,  charters,  deeds, 
and  copies  of  accounts  from  pubUc  offices  which  evidenced  their 
title  to  the  dues.  A  motion  by  the  plaintiffs  for  a  production  of  all 
the  documents  was  granted  by  the  vice  chancellor  as  to  the  two  old 
cases  only.  This  motion  was  afterwards  renewed  before  the  L.  C, 
who  coincided  with  his  honor  in  opinion  and  dismissed  it;  saying — "  I 
am  of  opinion  that  cases  laid  before  counsel  in  the  progress  of  a  cause, 
and  prepared  in  contemplation  of  and  icith  reference  to  an  action  or  suit^ 
can  not  be  ordered  to  be  produced  for  the  purj^oses  of  that  action  or 
suit."  'Bolton  vs.  Corporation  of  Livcrjwol,  1  My.  and  K.  88.  See 
also  Gi-eenough  vs.  Gaskell,  1  My.  and  K.  98. 

A  mortgagee  is  not  {unless  in  a  case  of  fraud,  or  under  other  special 
circumstances)  compellable  to  produce  books,  papers,  &c.,  6  Madd.  48; 
Anon.  Mosely,  246. 

The  case  in  Mosely  was  to  this  effect :  After  a  decree  for  a  fore- 
closure, nisi,  the  defendant  moved  that  the  plaintiff"  might  lay  the  deeds 
before  counsel,  in  order  that  the  defendant  might  have  the  mortgage 
assigned  to  one  who  would  advance  the  money;  the  plaintiff' insisted 
that  such  an  order  was  never  made,  but  where  the  mortgagee  consents 
to  a  sale,  for  by  that  he  submits  to  do  every  thing  that  is  necessary  to 
such  sale ;  the  lord  chancellor  made  an  order  simply  that  the  plaintiff" 
should  give  the  defendant  a  copy  of  the  mortgage  deed,  at  the  defend- 
ant's charge,  hut  would  not  ohlige  him  to  produce  the  title  deeds. 

The  rule  which  protects  a  mortgagee  from  the  production  of 
documents,  or  to  the  exposure  of  his  mortgagor's  title,  has,  in  its 
application,  been  so  strictly  adhered  to,  that  a  motion  on  the  part  of  a 
plaintiff"  for  the  production  of  a  deed  alleged  to  be  in  the  possession  of 
the  defendant  as  tenant  in  common  with  the  plaintiff",  was  refused,  it 
appearing  by  the  answer  that  the  defendant  had  sold  his  share  previous 
to  the  filing  of  the  bill,  and  was  in  possession  of  the  deed  in  question 
only  as  mortgagee  to  the  purchaser.  Lambert  vs.  Rogers,  2  Meriv. 
489. 

A  plaintiff"  in  a  tithe  suit  is  not  entitled  to  a  production  of  receipts 
for  moduses  and  compositions  given  to  the  defendants  by  the  plaintiff' 
and  his  predecessors,  some  of  those  receipts  relating  to  tithes  not  sued 
for,  and  the  others  being  evidence  for  the  defendants,  and  not  for  the 
plaintiff.  Tomlinson  vs.  Lymer,  2  Sim.  489 ;  and  see  Tomlinson  vs. 
Booth,  4  Sim.  461. 


APPENDIX.  643 


Where  a  bill  was  filed  to  set  aside  a  conveyance  on  the  ground  of 
fraud,  and  the  answer  dc/iicd  the  fraud,  the  schedule  annexed  to  the 
answer  set  forth,  as  required  by  the  bill,  a  list  of  the  title  deeds,  the 
settlement,  and  the  difendanV s purchase  deeds;  the  plaintifi"  moved  for 
the  production  of  all  the  deeds  mentioned  in  the  schedule,  or  such  of 
them  as  the  court  should  be  of  opinion  that  ho  was  entitled  to  inspect : 
the  only  deeds  which  the  defendant  objected  to  produce  tcere  the  purchase 
deeds.  The  vice  chancellor  refused  to  make  an  order  for  their  pro- 
duction, observing,  that  where  a  defendant  referred  to  his  schedule  as 
containing  all  deeds,  &c.,  in  his  custody  or  power  relating  to  the 
matters  in  question,  there  the  plaintiff  was  entitled  to  the  inspection 
of  all  such  deeds,  &c.,  as  of  course,  unless  it  appeared  by  the  descrip- 
tion of  any  particular  instrument  in  the  schedule,  or  by  affidavit,  that 
it  was  evidence  not  of  the  title  of  the  plaintiff"  but  of  the  defendant,  or 
that  the  plaintiff"  had  otherwise  no  interest  in  its  production  ;  and  he 
refused  to  order  the  defendant  to  produce  the  j^ur chase  deeds.  2  Sim. 
and  St.  309.     See  also  Ilall  vs.  AtJdnson,  1  Eq.  Ca.  abr.  333,  pi.  4. 

A  mere  heir-at-law  was  held  to  have  no  equity,  except  to  remove 
incumbrances  out  of  the  way  of  his  legal  right;  and  that  he  could  not 
call  for  an  inspection  of  all  the  deeds  in  the  possession  of  the  devisees 
or  any  of  them,  except  as  to  the  deeds  of  settlement  admitted  to  be  in 
the  possession  of  the  defendants,  creating  estates  in  tail  general.  Ladij 
Shafteshury  vs.  Arrowsmith,  4  Ves.  66. 

A  defendant  admitted  by  her  answer  that  at  a  time  j>ast  she  had  a 
deed  in  her  power;  but  as  she  did  not  admit  she  then  had  it,  a  motion 
to  produce  it  was  refused.     Hceman  vs.  Midland,  4  Madd.  391. 

The  court  will  not  on  motion  compel  a  plaintiff  to  produce  docu- 
ments in  his  possession,  although  the  defendant  swears  that  an 
inspection  of  them  is  necessary  to  enable  him  to  answer  the  bill. 
Pevfold  vs.  Nunn,  5  Sim.  409.  See  also  Milligan  vs.  Mitchell,  6  Sim. 
180,  and  Dick.  778. 

Motion  by  a  defendant  for  inspection  of  letters  referred  to  by  the 
plaintirt"'s  depositions,  as  exhibits,  refused  with  costs.  Wiley  vs.  Tisler, 
7  Ves.  411. 

A  defendant  to  a  mere  bill  of  discovery  in  aid  of  an  action  at  law, 
will  not  be  ordered  to  produce,  upon  the  trial  of  tJic  action,  or  ?//>o7i  any 
proceeding  incident  thereto,  documents  which  he  admits  by  his  answer 


644  APPENDIX. 


to  be  in  liis  possession.  Broii-n  vs.  Thornton,  1  My.  and  C.  243  ;  this, 
of  course,  will  not  protect  him  against  their  production  here  under  the 
common  order. 

Order  LXI. 
That  all  parties  accounting  before  the  masters  shall  bring 
in  their  accounts  in  the  form  of  debtor  and  creditor  ;  and 
any  of  the  other  parties  who  shall  not  be  satisfied  with  the 
accounts  so  brought  in,  shall  be  ut  liberty  to  examine  the 
accounting  parties  upon  interrogatories,  as  the  master  shall 
direct. 

Order  LXII. 
That  all  such  accounts,  when  passed  and  settled  by  the 
master,  shall  be  entered  in  a  book  to  be  kept  for  that  pur- 
pose in  the  master's  office,  as  is  now  the  practice  with 
respect  to  receiver's  accounts,  and  with  proper  indexes,  in 
order  to  be  referred  to,  as  occasion  may  require. 

Order  LXIII. 
That  the  masters,  in  acting  upon  the  order  of  the  court 
of  23d  April,  1796,  shall  be  at  liberty  upon  the  appoint- 
ment of  a  receiver,  or  at  any  time  subsequent  thereto,  in 
the  place  of  annual  j^eriods  for  the  delivery  of  the  receiver's 
accounts  and  payment  of  his  balances,  to  fix  eitlier  longer 
or  shorter  periods  at  his  discretion ;  and  when  such  other 
periods  are  fixed  by  the  master,  the  regulations  and  prin- 
ciples of  the  said  order  shall  in  all  other  respects  be  applied 
to  the  said  receiver. 

Order  LXIV. 
Tliat  in  every  order   directing  the   appointment  of  a 
receiver  of  a  landed  estate,  there  be  inserted  a  direction 


APPENDIX. 


645 


that  such  a  receiver  shall  manage,  as  well  as  set  and  let, 
with  the  a])])r()l)ation  of  the  master;  and  that  in  actino- 
under  such  an  order  it  shall  not  be  necessary  that  a  peti- 
tion l)e  presented,to  the  coui-t  in  the  first  iastance,  but  the 
master  without  special  order  shall  receive  any  jiroposal 
for  the  management  or  letting  of  the  estate  from  tlie  par- 
ties interested,  and  shall  make  his  report  thereon,  Avhich 
repoi-t  shall  be  submitted  to  the  court  for  confirmation  in 
the  same  manner  as  is  now  done  with  respect  to  reports  on 
such  matters  made  upon  special  reference ;  and  until  such 
report  he  wvfinned.,  it  shall  not  give  any  authm-ity  to  the 
receiver. 

Order  LXV. 
That  all  aflSdavits  which  have  been  previously  made  and 
read  in  court,  upon  any  proceeding  in  a  cause  or  matter 
may  be  used  before  a  master. 

Order  LXVI. 
Tliat  ^'here,  upon  an  inquiry  before  the  master,  afi&davits 
are  received,  there  no  afiidavits  in  reply  shall  be  read, 
except  vpon  a  new  matter^  which  may  he  stated  in  the  affida- 
vits in  ans^ver ;  nor  shall  any  further  affidavits  be  read 
unless  specially  required  by  the  master. 

Order  LXVII. 
That  the  master  shall  not  receive  fui-ther  evidence  as  to 
any  matter  de})ending  before  him  after  issuing  the  warrant 
on  prejKiring  his  report ;  but  that  he  shall  not  issue  such 
warrant  without  previously  requiring  the  pai-ties  to  show 
cause  why  such  warrant  should  not  issue. 


646  APPENDIX. 


Order  LXVIII. 
That  no  warrant  to  revieio  any  proceedings  in  the  mas- 
ter's office,  shall  be  allowed  to  be  taken  out.  exce][>t  hy 
permission  of  tlie  master^  vpon  special  gwunds  to  he  shown 
to  him  for  that  purpose  j  and  the  costs  of  such  review,  when 
allowed,  shall  be  in  the  discretion  of  the  master,  and  shall 
be  paid  by  and  to  such  persons  and  at  such  tune  as  he  shall 
direct. 

Order  LXIX. 
That  the  master  shall  have  power  at  his  discretion  to 
examine  any  witness  viva  voce;  and  in  such  case  the  suh- 
posna  for  the  attendance  of  the  witness  shall,  upon  a  note 
from  the  master,  be  issued  from  the  suhpoena  office ;  and 
that  the  evidence  ujion  such  viva  voce  examination  shall  be 
taken  down  by  the  master,  or  by  the  master's  clerk  in  his 
j^resence,  and  preserved  in  the  master's  office,  in  order  that 
the  same  may  be  used  by  the  court  if  necessary. 

The  direction  given  to  the  master  by  this  order  to  examine  witnesses 
viva  voce,  can  not  be  exercised  after  issuing  the  warrant  on  preparing 
his  report.      Trotter  vs.  Trotter,  5  Sim.  383. 

Order  LXX. 
Tliat  in  all  matters  referred  to  him,  the  master  shall  be 
at  liberty,  upon  the  application  of  any  party  interested,  to 
make  a  separate  report  w'  reports  from  time  to  time  as  to 
him  shall  seem  expedient ;  the  costs  of  such  separate  reports 
to  he  in  the  discretion  of  the  court. 

Order  LXXI. 

That  where  a  master  shall  make  a  separate  i-eport  of 
debts  or  legacies,  there  the  master  shall  be  at  liberty  to 


APPENDIX.  (547 


make  such  certificate  as  he  thinks  fit  with  respect  to  the  state 
of  the  assets;  and  every  person  interested  shall  thereupon 
be  at  liberty  to  ai)ply  to  the  court  as  he  shall  be  advised. 

Order  LXXII. 
That  the  master  shall  be  at  liberty  to  examine  any  cre- 
ditor or  other  ^lerson  coming  in  to  claim  before  him,  either 
upon  written  interrogatories  or  viva  voce^  or  in  both  modes, 
as  the  natui-e  of  tlic^  case  may  appear  to  him  to  require; 
the  evidence  upon  such  examination  being  taken  down  at 
the  time  by  the  master,  or  by  the  master's  clerk  in  his 
presence,  and  preserved,  in  order  that  the  same  may  be  used 
by  the  court,  if  necessary. 

Order  L XXIII. 
That  if  any  l")arty  wishes  to  complain  of  any  matter 
introduced  into  any  state  of  facts,  affidavit  or  other  pro- 
ceeding Iff  ore  the  master  ^  on  the  ground  that  it  is  scandalous 
or  imi)ertinent,  or  that  any  examination  taken  in  the  mas- 
ter s  office  is  insufficient,  he  shall  be  at  liberty,  without  any 
order  of  reference  hy  the  court^  to  take  out  a  warrant  for  the 
master  to  examine  such  matter,  and  the  master  shall  have 
authority  to  expunge  any  such  matter  which  he  shall  find 
to  be  scandalous  or  impertinent. 

Order  LXXIV. 
That  the  master,  in  deciding  on  the  sufficiency  or  insuffi- 
ciency of  any  answer  or  examination,  shall  take  into  con- 
sideration the  relevancy  or  materiality   of  the  stutement 
or  question  referred  to. 

It  was  hold  by  the  V.  C.  that  although  an  interrogatory,  and    the 
statement  in  the  bill  on  which  it  is  founded,  may  be  immaterial,  yet 


648  APPENDIX. 


if  the  defendant  attempts  to  answer  it,  and  he  answers  it  imperfectly, 
the  defendant  can  not,  upon  exceptions  to  the  sufficiency  of  his  answer, 
avail  himself  of  the  objection  that  the  statement  or  question  so  imper- 
fectly answered  are  immaterial.  Amor  vs.  Fcaron,  V.  C.  12th  July, 
1834.     Ed.  MSS. 

Order  LXXV. 

Tliat  in  cases  where  estates  or  otlier  property  are  directed 
to  be  sold  l)efore  the  master,  the  master  shall  he  at  liherty, 
if  he  shall  think  it  for  the  benefit  of  the  parties  interested, 
to  order  the  same  to  be  sold  in  the  country,  at  such  place 
and  by  such  person  as  he  shall  think  fit. 

Order  LXXVI. 
[^-5-  amended7\  That  where  a  master  is  directed  to  settle 
a  conveyance,  or  to  tax  costs  in  case  the  parties  differ  about 
the  same,  then  the  parties  claiming  the  costs,  or  entitled  to 
prepare  the  conveyance,  shall  bring  the  bill  of  costs,  or  the 
draft  of  the  conveyance,  into  the  master's  office,  and  give 
notice  of  his  having  so  done  to  the  other  party ;  and  at  any 
time  withui  eight  days  after  such  notice,  such  other  party 
shall  have  liberty  to  inspect  the  same  without  fee,  and  may 
take  a  copy  thereof,  if  he  thinks  fit.  And  at  or  Ijefore  the 
expiration  of  the  eight  days,  or  such  fm-ther  time  as  the 
master  shall  in  his  discretion  allow,  he  shall  then  either 
agree  to  pay  the  costs  or  adopt  the  conveyance,  as  the  case 
may  be,  or  signify  his  dissent  therefrom,  and  shall  there- 
upon be  at  liberty  to  tender  a  sum  of  money  for  the  costs, 
or  to  dehver  a  statement  in  writing,  of  the  alterations  which 
he  proposes  in  the  draft  of  the  conveyance.  But  if  he 
make  no  such  tender,  nor  deliver  any  such  statement  in 
writing,  or  if  the  other  party  refuses  to  accept  the  sum  so 


APPENDIX.  649 


tendered,  or  to  a(l()])t  the  proposed  alterations  in  tlie  draft 
of  the  conveyance,  tlie  master  shall  then  proceed  to  tax  the 
costs,  or  settle  the  coiiNeyance  accordinf^  to  tlic  jiractice  of 
tlie  court.  And  in  ca.se  the  taxed  costs  shall  not  exceed 
the  sum  tendered,  or  the  master  shall  adopt  the  i)ro])osed 
alterations  in  the  draft  of  the  conveyances,  then  the  costs 
of  the  taxation,  or  the  costs  of  the  proceeding  with  respect 
to  the  conveyance,  shall  be  l>orne  by  the  other  party. 

Order  LXXVII. 
That  whenever  in  any  proceeding  before  a  master  the 
same  solicitor  is  employed  for  two  or  more  parties,  such 
master  may,  at  his  discretion,  require  that  any  of  the  said 
]:)arties  shall  be  represented  before  him  by  a  distinct  soli- 
citor, and  may  refuse  to  proceed  until  such  party  is  so 
represented. 

Order  L XXVIII. 
That  such  of  the  foregoing  orders  as  limit  or  allow  any 
specified  time  for  any  party  to  take  any  2-)roceeding,  or  for 
any  other  puri)ose,  shall  only  appl}^  to  ca^es  where  the 
period  from  which  such  specified  time  is  to  be  comjMited 
shall  be  on  or  sul)sequent  to  the  fii-st  day  of  Easter  term 
next  ensuing. 

Order  LXXIX. 
That  such  of  the  foregoing  orders  as  relate  to  the  manner 
in  which  the  costs  of  any  suit  or  proceeding  are  to  be  taxed, 
and  to  the  amount  of  costs  to  be  ])ai(l  on  an\  occasion, 
shall  not  apply  to  any  costs  which  shall  have  l)een  incurred, 
or  to  the  costs  of  any  proceeding  which  shall  have  been  had 
or  taken  pre\^ously  to  the  first  day  of  Easter  term  next 
ensuincr. 


650  APPENDIX. 


Order  LXXX. 
That  siicli  of  tlie  foreofoinor  orders  as  relate  to  tLe  course 
of  proceeding  in  tlie  offices  of  tlie  masters  of  tlie  court,  or 
to  the  authority  of  the  masters,  shall  have  effect  from  and 
after  the  fii-st  day  of  Easter  term  next  ensumg,  (1828)  and 
shall  be  acted  upon  by  the  masters  in  all  cases,  except 
where,  from  the  then  advanced  stage  of  any  proceeding, 
they  are  not  practically  applicable. 

Order  LXXXI. 

That  the  subject  to  the  regulations  hereinbefore  specified, 
the  foreo:oino:  orders  shall  take  effect  as  to  all  suits,  whether 
now  depending  or  hereafter  commenced,  on  the  first  day 
of  Easter  term  next  (1828). 

Order  LXXXIl. 

(As  01-dercd  23tZ  November,  18131. J 

And  whereas  the  present  practice  that  causes  can  only 
be  entered  for  hearing  during  the  time  of  term,  and  that 
the  siiJypwiia  ad  midiendam  jiidkimn^  can  only  l)e  then 
returnable,  is  productive  of  great  delay  and  inconvenience ; 
it  is  hereby  further  ordered,  by  the  said  lord  high  chan- 
cellor, with  the  ad\nce  and  assistance  aforesaid,  that  from 
henceforth  causes  may  be  set  down  for  hearing,  and  the 
mihp(enas  ad  audiendum  judicium^  served  and  returnable 
on  any  day,  as  well  out  of  term  as  in  term,  and  this  order 
is  to  be  called  the  82d  order. 

And  it  is  hereby  further  ordered,  that  the  aforesaid  82d 
order  shall  take  effect  immediately,  and  the  aforesaid 
amended  orders  shall  take  effect  on  the  first  day  of  Hilary 
term  next  (1832). 


APPENDIX.  g52 


WOicn  a  cause  is  scjt  down  ami  a  suhpa-na  to  hear  judgment  is  served, 
and  afterwards  a  bill  of  revivor  is  filed,  no  new  suhpama  to  liear 
judgment  is  necessary.     Bray  vs.   Woodran,  6  Madd.  72. 

Contra,  where  the  cause  having  abated  had  come  on,  and  been 
ordered  to  stand  over,  and  then  a  bill  of  revivor  was  liled.  Coc/churn 
vs.  Raphael,  4  Sim.  18. 

Lyndiit^rst  akd  Brougham,  C. 
John  Leach,  M.  R, 
,  Launcelot  Siiadwell,  V.  C. 


ORDERS  OF  DECEMBER  21,  1833. 


It  i9  hereby  deelared  and  directed^  by  tlie  lord  high 
chancellor,  by  and  with  the  concurrence  of  the  master  of 
the  rolls,  and  of  the  \dce  chancellor,  that  from  and  after 
the  10th  day  of  January  next,  the  several  orders  which 
herenfter  follow,  shall  be  considered  as  a  substitution  for 
the  said  orders  of  the  SGth  day  of  IN'ovember  last. 

Order  I. 
That  all  writs  of  mdypoena  in  this  com't  shall  be  prepared 
by  the  solicitor  of  the  party  requiring  the  same,  and  that 
the  seal  for  sealing  the  same  shall  be  marked  or  mscribed 
Avith  the  words  '' Sul/jxena  Office,  Chancery;"  and  such 
writs  shall  be  in  the  forms  mentioned  at  the  foot  of  these 
orders,  or  as  neai'  iis  may  be,  with  such  alterations  and  \aii- 
ations  as  circumstances  may  require. 

Order  II. 
That  a  praecipe  in  the  usual  form,  containing  further  the 
particulars  hereinafter  mentioned,  (as  to  the  names  and 
residences  of  the  solicitors  issuing  the  same)  shall  in  all 
cases  be  dehvered  and  filed  at  the  sulipcena  office ;  and  that 
on  a  sidypama  for  costs  being  sealed,  the  cei"tificate  or  report 
fchaH  be  produced  to  the  officer  sealing  the  writ,  as  his  au- 
thority for  seahng  it. 


654  APPENDIX. 


Order  III. 
That  tlie  name  or  firm,  and  tlie  ]^lace  of  hiisiness  or  resi- 
dence of  tlie  solicitor  or  solicitors  issuing  a  suhpcena^  shall 
be  endorsed  thereon ;  and  where  such  solicitors  shall  be 
agents  only,  then  there  shall  be  further  indorsed  thereon 
the  name  or  fimi,  and  place  of  business  or  residence  of  the 
])i"incipal  solicitor  or  solicitors. 

Order  IV\ 

That  the  service  of  suhpoenas  shall  l)e  effected  by  deliver- 
ing a  copy  of  the  writ  and  of  the  endorsement  thereon,  and 
at  tlie  same  time  producmg  the  original  writ ;  and.  that  in 
all  cases  where  a  siibpoena  might  heretofore  have  been 
served  by  lea\dng  the  body  thereof  at  the  party's  dwelling 
house  or  otherwise  than  personally,  it  shall  be  sufficient  to 
leave  a  copy  of  such  subprena,  in  the  same  manner  pro- 
ducing the  original  writ  to  the  person  with  whom  such 
copy  shall  be  so  left. 

Order  V. 
I'hat  every  smJyimna^  other  than  a  suhprnnii  duces  teaimi^ 
shall  contain  three  names  where  necessary  or  requii'ed,  and 
that  a  gross  sum  or  fee  of  twelve  shillings  and  sixpence 
shall  be  the  amount  allowed  in  costs  for  every  suhp(jena 
duces  tecum^  including  the  praecipe,  attendance,  and  sum 
paid  for  sealing,  and  five  shillings  and  ten-pence  each  for 
all  other  sul/pcenas ;  in  addition  to  which  last  mentioned 
sum,  the  solicitor  suing  out  the  same  shall  be  allowed  one 
fee  of  six  shillings  and  eight-pence  for  the  precipes  and 
attendance  on  sealing  such  sidjpoenas  as  heretofore,  where 
the  number  of  names  included  therein  shall  not  exceed 


APPENDIX.  e55 


nine;  and  it'  they  sliull  exceed  nine  in  nunilM-i-,  then  an 
additional  fee  of  six  sliillin^-s  and  eii^ht-pence ;  and  if  tliey 
exceed  ei^'hteen,  a  fnrtlier  fee  of  six  sliillinu-s  and  ci'jlit- 
])enee,  and  so  in  proportion  for  every  achlition.il  niiinl»er 
of  nine  names,  included  in  snch  s-tihpmna. 

Order  VI. 
That  no  more  than  three  persons  shall  be  included  in 
one  'S-i(I>p<rna  duce-s  fecuiii^  and  that  the  party  suing  out  the 
same  shall  be  at  liberty  to  sue  out  a  sulypaena  for  each 
person,  if  it  shall  be  deemed  necessary  or  desirable ;  and 
that  the  sum  of  twelve  shillings  and  sixpence  shall  l)e 
allo^yed  in  costs  for  every  such  suhpcena^  including  the 
pr9eci})e,  attendance,  and  sum  paid  for  sealing  the  same. 

Order  VII. 
That  the  time  for  serving  any  suhpoena  (except  for  costs) 
shall  be  limited  to  the  last  day  of  the  term  next  following 
the  term  or  vacation  in  which  it  was  sued  out ;  and  that 
in  the  interval  between  the  suing  out  and  service  of  any 
snhpoena^  the  party  suing  out  the  same  shall  be  at  liberty 
to  correct  any  error  in  the  names  of  parties  or  witnesses, 
and  to  have  the  writ  resealed,  upon  payment  to  the  clerk 
at  the  •'suhjKi'iia  office  of  a  fee  of  one  shilling,  and  at  the 
same  time  leaving  a  corrected  pra'cipe  of  such  -sif/jpfena,, 
marked  "  altered  and  resealed,"  and  signed  Avith  the  name 
and  address  of  the  solicitor  or  solicitors  suinic  ^>i^t  the 
same. 

Order  VIII. 
That  when  any  defendant  has  been  taken  into  custody 
upon  attachment  or  other  process,  foi'  A\'ant  of  apj)earance 


656  APPENDIX. 


to  a  bill  of  revivor,  and  such  defendant  shall  have  been 
taken  thereon,  and  shall  refuse  or  neglect  to  enter  an 
appearance  to  such  bill  within  eight  days  after  the  return 
of  such  attachment,  the  plaintiff  shall  be  entitled,  as  of 
course,  upon  motion  or  petition,  to  tlie  common  order  to 
revive ;  and  if  the  defendant  cannot  be  found  so  as  to  be 
taken  upon  such  attachment,  and  a  return  of  '■^  non  est 
inventus  "  shall  have  been  made  thereon,  the  plaintiff  shall, 
upon  pi'oducing  such  return,  and  an  affidavit  that  due 
diliirence  has  been  used  in  endeavoring  to  execute  such 
attachment,  and  that  there  was  good  reason  to  believe 
that  the  defendant  was  in  the  county  to  wliich  such 
attachment  issued  at  the  time  of  suing  out  the  same,  be 
also  entitled,  as  of  course,  upon  motion  or  petition,  at  the 
end  of  eight  days  after  the  return  of  such  attacliment,  to 
obtain  the  common  order  to  revive ;  and  that  in  either  of 
such  cases  the  order  shall  recite,  as  the  ground  for  granting 
the  same,  that  the  defendant  is  in  contempt,  and  that  the 
time  limited  by  the  court  to  show  cause  against  reviving 
the  suit  has  ex2)ired. 

Order  IX. 

That  a  defendant  shall  be  at  liberty,  vntlmit  ordei\  to 
sue  out  a  dedimus  to  take  his  plea,  answer,  or  demurrer 
(not  demurring  alone),  in  the  country,  on  giving  two  days' 
notice  in  writing  to  the  plaintiff's  clerk  in  court  to  give 
commissioners'  names  to  see  the  same  taken,  and  in  default 
thereof  the  defendant  shall  be  at  liljerty  to  sue  out  the 
same,  directed  to  his  own  commissioners ;  and  in  case  of 
severe  illness  or  other  bodily  infirmity,  whereby  a  de- 
fendant, resident  not  less  than  four  miles  from  Lincoln's 


APPENDIX.  657 


Inn  ILill,  sliall  Ix'  renderetl  iiiiaMc  to  travel  or  IcaNc  home, 
he  shall,  upon  arti(hivit  first  made  thereof  ami  duly  filed, 
be  entitled  to  such  dedinius  as  aforesaid,  on  such  notice  first 
giv^en  as  herfiubefore  directed. 

A  defendant  can  not  file  a  demurrer  to  part  of  the  bill,  and  an  an- 
swer to  the  remainder  upon  a  common  dcdimus,  but  he  must  sue  out 
a  */>pr/rt/dedimus  for  that  purpose.  TomUnsun  vs.  Sivinnerton,  1  Keen's 
Reports,  9. 

Order  X. 
That  in  every  cause  where  an  original  or  supplemental 
bill,  or  bill  of  revivor,  hiis  been  filed  sul)sequent  to  the 
25th  day  of  November  last,  or  shall  hereafter  be  filed,  a 
defendant  shall,  after  appearance,  and  without  order,  be 
allowed  ei(/Iit  weeks  ui  a  town  cause  and  ten  weeks  in  a 
country  cause^  to  plead,  answer,  or  demur  (not  demurring 
alone)  to  any  such  original  or  supplemental  bill,  or  any 
such  bill  of  revivor,  to  which  an  answer  is  required ;  and 
five  weeks  in  a  toirn  canse^  and  seven  y:eeks  in  a  country 
cause,  to  i)lead,  answer,  or  demur  (not  demurring  alone)  to 
any  amended  hill  to  icldcli  the  plaintiff  shall  require  an 
answer  ;  but  that  twelve  days  only  shall  be  allowed  a  de- 
fendant to  demur  alone  to  any  such  original,  amended,  or 
su])])leniental  bill,  or  bill  of  revivor.  And  in  every  cause 
for  an  injunction  to  stay  proceedings  at  law,  if  the  defend- 
ant do  not  i)l('ad,  answer,  or  demur  to  the  plahitiff^s  l)ill 
within  eight  da}-s  after  api)earance,  the  plaintiff  shall  be 
entitled,  as  of  course,  upon  motion  to  such  injunction; 
and  if  the  deftuidant  shall  not,  within  eight  days  after  ap- 
pearance to  a  l>ill  of  re\ivor,  show  cause  by  plea,  answer, 
or  demurrer  filed,  the  i)laintitf  shall  be  entitled,  as  of  coui-se, 
upon  motion  or  petition,  to  the  common  order  to  re\nve 
42 


658  APPENDIX. 


wliicli  order  shall  recite,  as  the  G^ronnd  for  granting  the 
same,  that  the  time  limited  l)y  the  court  to  show  cause 
against  reviving  the  suit  has  expired. 

It  has  been  {Iccidcd  that  a  (Icfriidant  can  not,  hy  aji.su-cr,  show  cause 
against  reviving  a  suit ;  ho  must  do  so  by  ])lea  or  dernuncr.  See 
Lewis  vs.  Bridgman,  2  Sim.  4G5  ;  Codrington  vs.  Iloulditdi,  5  Simons, 
286.  But  it  seems  that  if  it  shouhl  appear  at  the  hearing  that  the  plain- 
tiff had  no  title  to  revive,  he  can  not  have  a  decree.  Harris  vs.  Pol- 
lard,  3  P.  W.  348. 

As  to  Demurrer. 

The  court  (under  special  circumstavccs)  will  give  a  defendant  leave 
to  file  a  demurrer  after  the  expiration  of  the  time  allowed  by  the  gen- 
eral order  of  the  court  ;  this  indulgence  was  extended  to  defendants 
after  they  had  obtained  a  second  order  for  time  to  answer  under  the 
former  practice,  the  suhpcma  having  been  made  returnable  immediately, 
and  it  appearing  that  the  defendants  had  not  been  guilty  of  willful  de- 
lay.    See  Attorney  General  vs.  M..  and,  C.  nf  Carlisle,  2  Sim.  427. 

Order  XL 

That  where  a  coinmon  injunction  for  want  of  answer  is 
awarded,  the  order  shall  recite,  as  the  ground  for  granting 
the  same,  that  the  defendant  has  omitted  to  put  in  his 
answer,  plea,  or  demurrer,  Avithin  the  time  limited  by  the 
court  in  that  behalf. 

Order  XII. 

That  where  a  defendant  is  in  contempt  to  an  attachment 
for  want  of  aiypearance.^  the  interval  between  the  day  fixed 
by  the  -s-ufyimna  for  appearance,  and  that  on  which  the 
same  is  actually  entered,  shall  Ije  de(hicted  from  the  time 
hereinbefore  allowed  to  a  defendant  to  plead,  answer,  or 
demur,  not  demurring  alone  to  the  j)laintiff's  bill. 


APPENDIX.  059 


OwoKK  xiir. 

Tliat  the  (lay  oil  uliicli  an  <»r(l('i'  t'oi-  tlic  ])laiiitirt" to  <i'ive 
secMiritv  tor  costs  is  sci'vcd,  and  the  pci'iod  t'lom  theiiee,  to 
and  iiicIudiiiLi'  tlic  day  on  u  liidi  >U(li  sce-urit}'  is  aiNcn, 
shall  not  1)0  reekoiit'd  in  tlic  computation  of  the  time 
allowed  a  defendant  to  plead,  answer,  or  demur. 

Okdek  XI N. 
That  where  the  plaintitV  ol)tains  an  order  to  amend 
without  i-ecjuirinii'  any  further  answer,  and  shall  amend 
the  l)ill  any  otherwise  than  1)y  an  altei'ation  of  names, 
date,  or  sums,  or  the  eori-eetion  of  clerical  ci'i'ors  only,  the 
defendant  shall,  as  of  course,  have  eight  days'  time  to  con- 
sider whether  it  is  necessary  for  him  or  her  to  answer  the 
same,  at  the  end  of  which  time  the  plaintiff  shall  be  at 
lil)erty  to  tile  a  i'e})lication,  or  set  down  the  cause  for 
hearing  on  bill  and  answer,  unless  the  defendant  shall 
have  previously  serve(l  an  (>r(l('r  for  time  to  answer,  or 
taken  out  and  served  a  wairant  for  time  to  answer  such 
amended  bill;  in  which  last  case,  the  master  may  allow 
the  defendant  such  time  (if  any)  for  that  pui'pose  as  he 
shall  think  fit. 

Order  XV. 
That  as  to  all  bills,  whether  original,  amended,  su])ple- 
mental,  or  of  revivor,  now  filed  or  to  be  filed,  whenever  a 
])arty  ma}'  desire  to  make  an  a])])lication  to  a  master  under 
the  said  act,  or  under  these  orders,  or  whenever  it  shall  be 
necessary  to  make  any  reference  to  any  master,  and  no 
previous  application  or  reference  to  any  master  has  been 
made  in  the  said  cause,  the  name  of  the  master  in  rotation 
shall  be  ascertained,  and   entered  in  books  to    be  kept  a;5 


660  APPENDIX. 


after  directed  in  tlie  manner  hereinafter  mentioned ;  and 
all  api)licatious  authorized  by  tlie  said  recited  act,  or  by 
these  orders,  to  be  made  to  a  master ;  and  every  such 
reference  ius  aforesaid  shall  l)e  made  to  the  said  master  in 
rotation. 

Order  \VI. 
That  as  to  all  bills  which  shall  have  been  filed  before 
this  day,  where  any  reference  has  been  made  in  the  cause, 
the  name  of  the  master  to  whom  the  last  refi^rence  Avas 
made  in  such  cause,  shall,  at  the  request  of  either  of  the 
parties  thereto,  or  of  his  or  her  solicitor,  and  on  producing 
such  order  of  reference,  with  the  master's  name  certified 
thereon,  or  appearing  therein,  be  added  by  the  six  clerk 
to  the  original  entry  of  the  cause  in  the  six  clerk's  book, 
and  entered  in  the  book  to  be  kept  as  hereinafter  directed, 
before  any  application  under  the  said  recited  act  shall  be 
made  in  that  cause ;  and  all  such  applications,  and  all  such 
references  as  aforesaid,  shall  be  made  to  such  last-mentioned 
master. 

Order  XVII. 
That  in  all  cases  where  it  shall  become  necessary  to  ascer- 
tain the  name  of  th(?  master  in  rotation,  for  the  purposes  of 
the  two  preceding  or  any  succeeding  orders,  one  of  the  six 
clerks  shall  give  to  the  solicitor  for  the  plaintiff  or  de- 
fendant requiring  the  same,  a  certificate  of  the  bill  filed, 
which  certificate  shall,  on  tlie  same  or  the  following  day, 
be  marked  by  the  master  of  the  day  at  the  public  office 
in  chancery,  with  the  name  of  the  master  in  rotation  for 
such  cause ;  and  such  certificate,  so  marked,  ( having  first 
been  produced  to  the  said  master  in  rotation,  who  shall 


APPENDIX.  661 


cause  a  minute  thereof  to  1)e  taken,)  sliall,  on  tlie  same 
day,  ])e  returned  to  the  six  eh'rk,  and  IIIimI  l.y  liim;  and 
lie  shall  add  tlic  name  of  such  master  to  tlie  oriL^iiial  entry 
of  tlie  cause  in  tlie  six  clei'kV  hook,  and  shall  also  caiLse 
the  name  of  the  cause,  and  of  such  master,  to  be  entered 
in  a  l)Ook  to  l>e  kept  l)y  the  six  clei-k  for  tlnit  purj)ose  in 
the  six  clerk's  otHce,  and  which  shall  l)e  o])('n  to  inspec- 
tion at  all  times  dui'iny  the  office  hours  without  fee. 

Okueu  XV ITT. 
That  where  a  vlefendant  wlio  is  not  in  contem])t,  oi-  has 
not  entered  his  a|)])earance  with  the  registrar  in  mainier 
hereinafter  mentioned,  .sn/nnif-s-  to  (ui-s-wer  exception-s  tahen 
fo  (f  Jirsf  <(ns-wei\  before  a  in/  order  to  refer  the  Miiiie  has 
been  obtained^  lie  shall  he  allowed,  as  of  course,  and  without 
ordei',  four  weeks  in  a  toA\n  cause,  and  six  weeks  in  a 
country  cause,  to  2)ut  in  a  fui'ther  answer  thereto;  l)ut  if 
sucli  ordei-  of  reference  lias  l»een  ohtaiiieil  and  served  ])rior 
to  such  sul  niis'-ion,  then  tlie  )n((-ster  to  wlioiii  the  reference 
has  heen  made,  shall  fix  the  time,  which  shall  Le  allowed 
the  defendant  to  ])ut  in  such  further  answer. 

OUDER   XIX. 

That  the  master  to  uhom  any  exceptions  to  an  answer 
for  insufficiency  shall  be  referred,  shall  be  at  liberty  in 
making  a  report  upon  such  exceptions,  if  he  shall  think  fit, 
to  certify  l)y  whom,  and  in  Avhat  ]iroportions  (if  am)  the 
costs  of  such  exceptions  and  of  the  reference  thereon  ought 
to  be  borne;  and  that  upon  the  taxation  of  the  genei-al 
costs  in  the  cause  under  the  ttrentij-eigJith  order^pronoinioed 
on  the  Zrd  April ^  18*28,  regard  shall  be  had  to  such  cei-tifi- 


f562  APPENDIX. 


cate,  and  tlie  costs  to  he  allowed  to  eitlior  party,  sli:ill  l)e 
taxed  and  apportioned  aecordinji'ly. 

OUDEII   XX. 

That  all  ^peciid  applications />>/'Vw?'^  to  )rif]iJraw  re- 
'pliraihni^  as  wdl  as-  to  amend  liU,  -sJiaU  he  lieard  and 
detenu ined  hy  SKch  master  in  rotation;  and  sucli  applica- 
tions, and  edl  other  specicd  applications  under  tlie  said 
recited  act,  sliall  be  made  Ly  taking  out  a  warrant,  at  tlie 
foot  \\liereof  a  notice  sliall  be  written,  specifying  tlie  ob- 
ject of  the  application;  and  tlie  same  sliall  be  served  two 
clear  days  before  the  return  thereof. 

Order  XXI. 
That  in  every  order  granted  by  a  master  for  further 
time  to  answer,  it  shall  l)e  made  a  condition  of  such  order, 
that  the  defendant  shall  enter  his  api)earance  with  the 
registrar,  and  consent  to  a  sergeant-at-arms,  as  in  the  case 
of  a  commission  of  rel)ellion  returned  '^non  est  inventus'^'' 
unless  under  any  special  circumstances  the  said  master  sliall 
otherwise  direct,  and  which  circumstances  shall  l)e  shortly 
stated  in  the  order. 

Order  XXII. 
That  all  orders  to  refer  an  answer,  or  otln^r  pleading,  or 
matter  depending  lefore  tie  conrt  for  scandal  or  iui[)erti- 
nence,  shall  contain  a  direction  t<^  the  master  to  ex])unge 
any  such  scandalous  or  ini})ertin('nt  matter  as  he  shall  cer- 
tify to  be  contained  therein,  and  which  shall  have  been  the 
subject  of  the  reference ;  and  the  master  shall  be  at  li})erty, 
without  further  order,  to  tax  the  costs  of  such  reference 
and  consequent  thereon,  and  to  direct  by  whom  the  same 


APPENDIX.  663 


sliall  lie  jiaid,  and  tlic  same  >Iiall  lie  rcroxcraltlc  li\'  v/z/y- 
jHDKt;  l)ut  siu'li  scaiiilaloiis  (»r  iiiipcitiiiciit  matter  >]iall  ii<jt 
!)('  ('\j)min"<'<l,  iioi'  costs  taxed,  until  tlic  exji'natioii  (^t"  i'oiir 
(lays  from  the  tiling  of  tlie  report  of  such  scauchil  or  im- 
[)ertinence,  in  order  tliat  tlie  adverse  l)arty  may  liave  an 
opjMiitunit}-  to  tile  exceptions  to  such  report. 

OitDKi!  XX fir. 
Tliat  the  said  masters  sliall,  on  all  a})plications  to  them, 
or  either  of  them,  hy  Avarrant  under  the  said  recited  act, 
or  under  these  orders,  or  either  of  tliem,  he  at  li])erty  to 
direct,  and  sliall  aceoi'diiiLily,  in  the  oi'ders  made  thereon, 
<»i'der  ami  dii'ci-t  \\  hetlier  the  co-sfs  of  the  apjdication  shall 
))e  costs  in  the  cause,  or  w  hether  such  costs,  or  any  part 
tliereof,  sliall  be  paid  Ly  any  of  the  i)ai"ties  jiersonally ;  and 
in  the  latter  case,  the  said  masters  respectively  shall,  in 
sm-h  orders,  either  Hx  the  sum  to  l)e  ])aid  for  such  costs,  or 
tax  the  same,  at  their  discretion;  and  the  party  to  whom 
such  costs  are  directed  to  he  paid,  shall  he  entitled  to  sue 
out  a  siihpiena  for  the  same. 

Okdkh  XXIV. 
That  the  master  to  A\hom  any  such  application  or  i-efer- 
ence  as  aforesaid  shall  l)e  made,  shall  draw  up  the  ordeis 
thereon  in  a  short  form,  and  the  same,  a\  hen  signed  by 
him,  shall  he  entered  in  a  l)ook  to  he  kept  for  that  purpose 
in  the  office  of  such  master,  and  shall  then  ])e  marked  l)y 
the  said  mastei-,  or  his  chief  clerk,  as  entered,  and  he  >]iall 
sign  his  initials  thereto  in  this  form:  '■'•  Eiif.^  A.  11.  y  and 
the  said  ordeis  shall  then  he  binding,  (unless  reversed  or 
vai-ied  on  ap[)eal)  and  shall  be  enforced  in  like  manner  as 
if  made    by  the    court ;    and   the  original  order,  or  any 


664  APPENDIX. 


duplicate  thereof,  wliicli  the  master  is  directed  to  grant  on 
the  ap]ilicati()n  of  any  "i)arty,  so  signed  and  entered  as 
aforesaitl,  sliall  l)e  a  suihc-ient  warrant  to  every  officer  of 
the  court  to  do  the  act  tlierein  mentioned,  or  to  ])ermit  the 
same  to  he  done  ;  and  each  party  shall  he  at  liherty  to 
inspect  the  entry  of  all  siu-li  orders  in  the  said  entei-ing 
hook,  without  fee. 

Order  XX^^ 
That  in  case  it  shall  hecome  necessary  to  make  any 
application  to  a  master  under  the  said  recited  act,  during 
the  period  hetween  the  last  seal  after  Trinity  term,  and  the 
seal  next  before  Michaelmas  term,  such  application  shall  be 
made  to  the  sitting  master  of  the  vacation.,  and  his  dicision 
and  order  thereon  shall  be  equally  l)inding,  and  acted  upon 
and  enforced  in  the  same  way  and  manner,  as  if  made  by 
the  master  in  rotation,  to  whom  the  same  has,  or  ought 
otherwise  to  have  been  referred ;  but  all  subsequent  appli- 
cations, and  all  references  in  the  cause,  shall  l)e  made  to 
such  master  in  rotation. 

Order  XXVI. 
That  a  defendant  shall  not  be  at  liberty  to  serve  a  notice 
of  motion  to  dismiss  for  want  of  prosecution,  imtil  after  the 
time  limited  by  the  rules  of  the  court  witliin  which  a  i)lain- 
tiff,  may  obtain  an  ordei"  to  amend,  as-  to  6-uch  dc^'endant, 
shall  have  expired,  anything  in  any  former  order  contained 
to  the  contrary  notwithstanding. 

Order   XXVII. 
That  each  registrar  shall  attend  in  succession  the  three 
several  courts  of  the  lord  chancellor,  the  master  of  the  rolls, 
and  the  vice  chancellor. 


APPENDIX.  665 


That  foi"  file  piiri»()se  of  avoidiiiij,  as  much  as  may  })0, 
expense  niid  delay  in  tlic  drawiiiir  of  tlie  deei-ees  and 
orders  of  tlii>  coni-t,  it  is  liei-cKy  directed,  tliaf,  except  in 
orders  for  sjx-cial  injniictions,  in  wliicli  tlie  n-nal  i-ecitals 
shall  be  inserted  as  heretofore,  neither  tlie  hill  nor  answers, 
nor  any  part  thereof,  he  stated  or  reeited  in  the  oi'iii-inal 
decree  or  order;  and  that  no  ])ai-t  of  the  master's  rejx)!! 
he  stated  in  any  decree  n|)()n  furthei-  directions,  except  the 
master's  iindinu\  or  (»})ini()n  upon  the  snhject  referred  to 
him;  and  that  in  orders  made  upon  petitions,  no  \)iivt  of 
the  petition  l)e  stated  or  recited,  except  the  i)rayer;  and 
that  the  same  prim*i[)le  of  l)revity  he  oT)served  in  all  the 
orders  of  this  court  math'  nj)on  motion,  so  far  as  mav  be 
consistent  m  itli  a  statement  exjdaining  the  ij-rounds  njxni 
which  the  order  is  made.  And  for  the  bettej-  undei- 
standinii:  of  this  order,  certain  foi'ms  of  deei-ees  and  orders 
drawn  pursuant  hereto  are  subjoined.  And  it  is  hereby 
directed,  that  such  forms  shall  be  observed  in  all  cases  as 
nearly  as  may  be,  and  tliat  before  any  order  made  on  a 
petition  be  passed,  Me  orifjuud  petition  he  f fid  irif],  tlie 
derh  of  the  rqwrt-s: 

Order  XXVIII. 
That  ill  all  cases  where  any  sums  of  money,  or  any 
securities,  or  other  eftects  beloncfin^-  to  the  suitors  of  the 
court  of  chancery,  shall  ])e  directed  to  be  j)aid  into  or 
deposited  in  the  bank  of  Enu'land,  in  tlie  name  and  with 
the  ])ri\ity  of  the  act-onntaiit  u't'iiei'al  of  the  said  coiii-t  ; 
and  in  all  cases  where  any  such  sum  of  nionev,  or  any 
securities,  or  other  effects,  be  directed  to  be  ])aid  out,  or 
invested  in  the  ])urchase  of  securities,  transferred  or  carried 
over,  or  delivered  out,  the  exact  sum  of  money  and  amount 


666  APPENDIX. 


of  securities  so  to  be  i)ai(l  out,  invested,  transferred,  or 
carried  over,  l)e  asc'ertaiiied  l)y  the  registrar,  and  s])ecitied 
and  expressed  in  tlie  order  of  court,  in  words  written  at 
len<Ttli,  exce})t  in  the  case  of  residues  of  money  or  securi- 
ties remaininn-  after  a  poition  directed  to  l)e  api)lied  for 
particular  pur])oses,  the  amount  of  wliicli  can  not  Le 
ascertained  at  tlie  time  of  making  the  said  order;  in  which 
cases  tlie  order  shall  direct  that  the  amount  of  such 
residues  and  sliai'es  of  residues  sliall  l»e  ascertained  and 
specified  l)y  afHihivit. 

And  that  in  all  cases,  wliere  a  residue  of  cash,  or  secu- 
rities, shall  be  directed  by  any  order  to  be  o])erated  upon 
l)y  the  accountant  general,  the  exact  amount  of  such 
residue,  where  the  same  can  l)e  done,  sliall  be  ascertained 
by  the  registrars,  and  expressed  and  specified  in  the 
order  in  words  at  leugtli,  so  that  the  amount  of  such 
residue  shall  api)ear  on  the  face  of  the  order. 

And  tliat  all  ])ersons  (whether  representatives  or  others) 
wlio  shall  be  dii'ected  to  ])ay  in,  transl'er,  or  deposit  any 
sum  of  money,  securities,  or  other  effects,  in  the  name  of 
the  accountant  general, — and  all  ])ersons  (whether  rei)re- 
sentatives  or  others)  to  whom  any  sums  of  money,  securi- 
ties, or  other  etfects  shall  be  directed  to  be  paid  out, 
transferred,  cairied  ovei-,  or  delivered  out  l>y  the  account- 
ant general, — shall  he  descrihed  by  nam(»,  except  in  the 
case  of  bodies  coi"j)orate,  com})anies,  or  societies,  in  such 
order,  and  not  mei-ely  as  plaintiffs,  or  jxititioners,  or  the 
like,  excei>t  in  cases  of  j)a\-ments,  transfers,  or  carryings 
over,  directed  to  Ix;  made  to,  or  by  rei)resentatives,  where 
no  probate  or  letters  of  administration  shall  have  been 
taken  out  at  the  time  of  making  such  orders ;    and   the 


appi:nf)I\.  667 


fliristmn  and  suniaiiKN,  or  titles  of  honor  of  all  sncli 
persons,  an<l  the  titles  of  all  siu-li  Itodic-  cnipoiatc,  (•oinpa- 
nies,  and  societies,  sliall  Ik-  written  at  leiiulli,  and  without 
altl)re\  iations,  in  such  oi-ders. 

That  in  all  orders  directing  the  payment  of  dividends 
and  annnities,  the  time  when  the  first  of  such  ])a\iiieiits 
shall  he  made,  and  wlieu  all  sulise(|uent  ])eriodical  ])a\- 
ments,  w  hethei-  ([uai-terly,  hali-yearly,  yearly,  or  otherwise, 
shall  lie  niaile,  shall  he  s])ecified  and  expressed  in  words  at 
leii-th. 

That  all  oi'ders  directinn'  the  la\  inii"  out  of  sums  of  mo- 
ney, of  uncertain  amount,  in  the  imrchase  of  securities,  do 
direct  that  such  investments  shall  he  made  w  hen  the  money 
sliall  amount  to  a  com}>etent  sum,  and  not  soonei-. 

That  in  all  cases,  where  it  shall  he  referred  t(.)  a  master 
of  the  court  of  chaneery,  to  ascertain  and  a])portion  the 
amount  of  money  or  securities  to  he  paid  into  the  hank 
of  England,  in  the  name  and  w  ith  the  pi-i\  ity  of  the  ac- 
countant genei'al,  and  of  any  securities  to  he  cai'ried  o\'er 
or  transferred  to  the  accountant  general,  or  to  ascertain  or 
aj)poi'tion  the  amount  of  money  to  he  [)aidout,  or  invested 
in  the  purchase  of  securities  to  he  ])aid  out,  or  of  securities 
to  he  sold,  cari-ied  over,  or  transferred  hy  the  accountant 
general,  the  exact  amount  «>f  such  money  or  securities,  re- 
spectively, shall  1)6  ascertained  hy  the  masters  and  stated 
in  the  re])ort  in  Avords  at  length,  e.\ce[)t  in  the  case  of  resi- 
due of  money  or  secin-ities  remaining  after  a  ]K>rtion  di- 
rected to  l)e  applied  to  certain  |)urpose-<,  and  the  amount 
of  which  portions  can  not  he  ascertained  at  tht'  timi'  o\' 
making  such  I'cport,  in  wliicli  case  the  amount  >if  sui-h  re- 
sidue and  i)oi'tions  shall  he  ascertained  hy  ai1ida\  it. 


66S  APPENDIX. 

AikI  that  in  all  caster,  where  a  residue  of  cash  or  securi- 
ties sliall  l)e  directed  hy  an  order  to  l)e  operated  upon  by 
the  accountant  c^eneral,  the  exact  amount  of  such  residue, 
where  the  same  can  be  done,  shall  he  ascertained  by  the 
mastei*s,  and  expressed  and  specified  in  the  order  in  words 
at  leng-th,  so  that  the  amount  of  such  residue  sliall  appear 
on  the  face  of  the  order. 

And  in  all  such  cases,  the  persons  by  (n^  to  whom  mo- 
ney is  to  be  paid,  or  securities  carried  over  or  transfeiTed 
as  aforesaid,  shall  l)e  described  l)y  name,  except  in  the  case 
of  bodies  corporate,  companies,  or  societies,  in  such  re])orts, 
and  not  merely  as  ])laintifis,  or  petitioners,  or  the  like;  ex- 
cept in  the  cases  of  payments,  transfers,  or  carryings  oyer, 
directed  to  be  made  to  or  by  representatiyes,  where  no 
probate  or  letters  of  administration  shall  have  been  taken 
out  at  the  time  of  making  the  said  rej)ort,  and  the  chris- 
tian and  surnames  or  titles  of  honor  of  all  such  persons, 
and  the  titles  of  all  such  bodies  corporate,  companies,  and 
societies,  shall  be  written  at  full  length  in  the  said  report. 

OllDEU    XXIX. 

That  with  a  yiew  to  the  conyenience  of  the  suitors  and 
their  solicitors,  and  for  the  purpose  of  diminishing  the  ex- 
pense of  orders  on  petitions  of  cour^e^  which,  according  to 
the  practice  of  the  court,  may  be  })r(^s(Mited  to  the  master 
of  the  rf)lls,  one  of  the  secretaries  of  the  master  of  the 
rolls  shall,  u[)on  any  such  petitions  of  course^  (except  upon 
2)etition-st  for  .s-eftimj  doiim  eau^e^  to  he  reheard^)  which  shall 
be  presented  to  his  honor,  instead  of  answering  such  peti- 
tions as  heretofore,  draAV  u])  the  orders  thereon  in  such 
form  as  the  master  of  tlie  rolls  shall  from  time  to  time 


APPENDIX.  669 


direct,  every  such  ordiT  to  1)l'  si^iu'd  as  ]>ass(*(l  witli  tlic  ini- 
tials of  such  secretary;  and  tlie  under  secretary  shall  enter, 
or  cause  to  ])e  entered,  ever}'  such  order  in  a  hook  to  he 
kej)t  at  the  secretary's  office  at  the  rolls  for  that  ])urj)ose, 
and  shall  then  mark  and  siu'n  such  order  with  his  initials, 
as  entered;  and  the  suitors  of  the  court  and  their  solicitors 
shall  have  access  to  the  said  hook,  during  office  hours,  with- 
out the  ])aynient  of  any  fee;  and  for  every  such  order  so 
to  he  made  as  aforesaid,  there  shall  he  paid  the  same  fees 
as  have  hitherto  l)een  i)ayal)le  in  respect  of  such  petitions 
as  aforesaid,  in  lieu  of  the  fees  on  such  petitions.  And 
there  shall  be  also  paid  to  the  chief  secretary,  for  filing 
every  such  petition,  the  sum  of  one  shilling;  and  to  the 
under  secretary,  for  entering  every  such  orth^r,  the  sum  of 
six-])ence.  And  every  such  order  so  to  he  made  as  afore- 
said, shall  have  the  same  force  and  effect  as  orders  of 
course  passed  hy  the  registrars  now  have,  and  without  the 
payment  of  the  fees  heretofore  payable  on  such  orders  at 
the  registrar's  office ;  and  for  every  office  co])y  that  may 
be  required  of  any  such  order,  there  shall  l)e  paid  to  the 
chief  secretary  (who  shall  mark  the  same  as  examined, 
and  authenticate  it  by  affixing  his  initials  thereto)  the  sum 
of  six-i)ence,  and  no  more,  for  making  the  same. 

Order  XXX. 

That  the  (Uities  to  be  performed  in  the  office  of  the 
master  of  reports  and  entries,  shall  be  carried  on  as  the 
same  were  heretofore  done  ])y  the  master  of  the  re])ort 
office;  and  tliat  all  decrees  and  orders  of  the  high  court 
of  chancery,  shall  l)e  entered  by  the  clerks  of  entries  under 
the  direction  of  the  master  of  reports  and  entries. 


670  APPENDIX. 


Tliat  j)roi)er  calendars  or  indexes  sliall  Ije  kept  l)y  tlie 
clerks  of  entries,  so  that  the  same  may  he  conveniently 
referred  to  wlicii  riMinii-cd  ;  and  such  calendars  or  indexes, 
and  the  liooks  of  entries,  shall,  at  all  times  dnrhig  office 
hours,  he  accessilde  to  the  jnihlic,  on  payment  of  the  usual 
fees. 

That  all  re])orts,  and  exceptions  to  rejxn'ts,  and  ])etitions, 
shall  l)e  left  A\ith  the  clerk  of  re])oi-ts,  to  he  by  him  hied 
or  preserved  uiidci'  the  direction  of  the  master  of  reports 
and  entries,  and  all  office  copies  thereof,  or  of  any  part 
thereof,  that  ma}'  he  recpnred,  shall  he  i-eady  to  be  de- 
livei'ed  to  the  ])arty  retpiiring  the  same  within  forty-eight 
hours  after  the  same  shall  have  l)een  bespoken  ;  and  that 
all  decrees  and  orders  shall  be  entered  within  one  week 
after  the  same  shall  be  left  for  enti'}',  and  that  all  such 
enti'ies  shall  be  examined  ]>y  one  of  the  clerks  of  entries, 
and  be  marked  Avitlihis  initials,  to  denote  such  examination. 

That  })roper  indexes  or  calendars  to  the  files  or  bundles 
of  the  reports  and  excei)tions  to  re})orts  and  petitions  shall 
be  kept,  so  that  the  same  may  be  conveniently  referred  to 
when  required ;  and  such  calendars  and  indexes,  and  the 
said  original  re|)orts  and  excej)ti<)nsto  reports  and  petitions, 
shall,  at  all  times  during  office  hours,  be  accessible  to  the 
public,  on  payment  of  the  usual  fees. 

Tliat  in  addition  to  such  calendars,  the  said  clerks  of 
re})oits  shall  enter  in  a  book,  to  l^e  ke[)t  l)y  them  for  that 
pui'])ose,  the  time  when  any  report  and  set  of  exceptions 
is  delivered  to  them  to  be  filed,  with  the  name  of  the  cause 
an<l  the  date  of  the  report,  and,  as  regards  exceptions,  the 
names  of  the  parties  excepting,  and  such  book  shall,  at  all 
times  during  office  hours,  be  accessible  to  the  2)ublic. 


APPENDIX.  671 


ohdkk  XX xr. 

1'liat  all  office  cojdcs,  in  all  tlic  <ifHc('S  of  tlic  couit,  slial] 
l)t'  ■written  on  foolscap  pajiei-  liookwise,  and  >li;ill  contain 
two  folios  in  each  l>au"e,  except  as  to  (»ffice  c()j)ies  of  hills, 
wliicli  shall  contain  only  one  folio,  such  folios  to  consist  of 
ninety  words  eacli,  and  to  be  reckoned  as  to  scli(Mhiles  ac- 
C(>rdin<4'  to  the  manner  directed  by  the  general  oidei-  of  this 
court,  hearinu-  date  the  I's///  ddij  of  Novemljei\  \1\?>. 

Okdkk  xxxir. 

Tliat  the  hist  intei'rouat(»i'y  now  ct>nini(»nly  in  use,  he  in 
future  altei-ed,  and  shall  stand  and  he  in  the  woids  or  to 
the  eftect  following':  "YAy  ijoii  lii<>ii\  oi-  cdii  ijon  sy/  forfJi^ 
any  other  mattd-  or  thhuj  irjiich  may  he  of  hen  eft  or  (iiJran- 
tage  to  the  jKtrtie-s-  (it  issue  in  this-  caits-e^  or  either  of  them^ 
or  theit  may  he  material  to  the  -whyect  of  thi-'s  your  examina- 
tion^ or  to  the  matters  in  question  in  this  cause^  if  yea^  set 
forth  the  smne^''  ctv. 

A  party  is  not  hound  to  insert  this  interrogatory. 
OUDEII    XXX 11  h 

That  the  masters  extraordinary  of  this  eoui-t  sludl  be  at 
hl)erty  in  future  to  take  any  affidtivit,  or  do  any  other  act 
incident  to  the  office  of  master  extraordinary  in  chancery, 
at  any  place  which  is  distant  not  h.\-\-  tJian  ten  miles  from 
the  hall  in  Liiivoln^-s  Inn,  any  existini;'  order  to  tlie  contrary 
notwithsttuidinLT. 

Okdimi  XXXTV. 
Tliat  tile  fees  set  foi'th  in  the  schedule  after  stated  shall 
constitute  the  schedule  of  fees  to  be  receiveil  bv  the  mas- 


672  APPENDIX. 


ters  and  tlieir  clerks,  and  the  registrars  and  tlieir  clerks, 
under  the  said  recited  act. 

Order  XXXV. 
That,  except  a.s  may  he  herein  otherwise  directed,  the 
offices  of  this  court  shall  continue  open  for  the  despatch 
of  l)usiness,  and  tlie  officers  and  clerks  belonging  thereto, 
sliall  attend  in  sncli  offices  in  the  discharge  of  their  busi- 
ness, during-  sncli  times  and  for  such  number  of  hours  in 
each  day,  as  they  have  hitherto  done^  under  any  existing 
order  or  practice  of  the  said  court. 

Order  XXXM. 

That  the  office  of  the  clerk  of  the  affidavits,  and  of  the 
patentee  of  the  subpcena  office,  Ije  open  from  the  hour  of 
ten  in  the  forenoon  until  four  in  the  afternoon,  and,  during 
the  sitting  of  either  of  the  courts,  from  the  hour  of  seven 
to  eight  in  the  evening,  except  that  from  the  1  st  of  Sep- 
tember to  the  20th  of  October,  those  offices  shall  be  open 
only  from  eleven  to  one  o'clock. 

That  all  co2)ies  of  affidavits  l)e  ready  for  delivery  within 
foi-ty-eight  hours  after  any  copy  shall  be  bespoken. 

Brougham,  C. 

John  Leach,  M.  R. 

Lancelot  Shadwell,  V.  C. 


ORDERS  OF  MAY  5,   1837. 


Order  I. 
That,  from  and  after  tlie  20tli  day  of  May  now  instant, 
every  original  information  or  l)ill  of  complaint  filed  in  the 
liigh  court  of  chancery,  shall  (at  the  option  (jf  the  party, 
informant  or  complahiant,  by  or  on  whose  behalf  the 
mformation  or  bill  shall  be  filed)  be  distinctly  marked  at 
or  near  the  top  or  upper  part  thereof,  either  with  the 
woi'ds  "Lord  Chancellor,"  or  with  the  words  "blaster  of 
the  llolls  ;'•  and  that  the  six  clerks  and  clerk  in  court,  to 
Avhom  the  filing  of  the  information  or  bill  belongs,  shall, 
in  the  l)Ooks  and  indexes  in  which  the  same  shall  be 
entered,  add  to  the  entry  thereof  such  distinguishing 
words  or  maik  as  ma}^  make  it  appear  from  such  entry, 
whether  the  information  or  bill  is  marked  with  the  words 
"Lord  Chancellor,"  or  AA'itli  the  words  "Master  of  the 
Rolls;"  and  that,  from  and  after  the  said  20tli  day  of 
May,  the  six  clerks  and  clerks  in  court  are  not  to  file  any 
original  information  or  bill  of  complaint  which  shall  not 
be  marked  in  the  manner  liereinbefore  directed. 

Order  II. 
That,  in  every  cause  in  which  the  original  information 
or  bill  shall  be  marked  with  the  words  "Lord  Chancellor," 
43 


674  APPENDIX. 


or  ^\  ith  the  words  "  Master  of  tlie  llolls,"  the  six  clerk  to 
wliom  it  belongs  to  give  or  sign  the  certificate  that  the 
cause  is  ready  for  hearmg,  shall,  upon  being  applied  to  for 
such  certificate,  see  that  the  same  certificate  is  marked,  or 
cause  the  same  to  be  marked,  with  the  words  "Lord 
Chancellor,"  or  with  the  words  ''  Master  of  the  Rolls,"  in 
conformity  with  the  like  w^ords  marked  on  the  original 
information  or  1)ill. 

Order  III. 
That,  in  every  cause  now  in  court,  but  which  h^is  not 
yet  been  set  down  for  hearing,  the  clerk  in  court,  who,  on 
the  behalf  of  the  informant,  or  of  the  plaintifl:'  or  defend- 
ant, shall,  at  any  time  after  the  20th  day  of  May  instant, 
apply  to  the  six  clerk  to  set  down  the  cause  for  hearing, 
or  for  the  certificate  that  the  cause  is  ready  for  hearing, 
shall  state  or  certify  to  such  six  clerk  whether  any  orders 
or  order  disposing  of  any  pleas  or  plea,  demmTers  or 
demurrer,  or  any  special  orders  or  order  uj^on  merits 
shoTVTi  by  answer  or  by  afiidavit,  have  or  luis  been  made 
in  the  cause,  or  (in  case  no  such  order  as  aforesaid  has 
been  made)  whether  the  party,  on  whose  behalf  the  appli- 
cation is  made,  desires  the  cause  to  be  heard  before  the 
lord  chancellor  or  the  master  of  the  rolls ;  and  in  case  the 
clerk  in  court  so  applying  shall  certify  that  any  such  order 
as  aforesaid  has  been  made  by  the  lord  chancellor  or  vice 
chancellor,  and  not  l)y  the  master  of  the  rolls,  or  that  such 
orders  as  aforesaid  have  been  made  Ijy  both  the  lord 
chancellor  or  vice  chancellor  and  the  master  of  the  rolls, 
but  that  the  last  of  such  orders  has  been  made  by  the 
lord  chancellor  or  vice  chancellor,  or  (in  case  no  such 
order  has  been  made  in  the  cause)  that  the  party  desires 


APPENDIX.  G75 


tlie  cause  to  he  heard  before  the  hml  chancellor,  the  six 
clerk  givhig  the  certificate  shall  see  that  the  same  certifi- 
cate is  marked,  or  shall  cause  the  same  to  Le  marked, 
Avith  the  Avords  "  Lord  Chancellor ;"  and  the  six  clerk  and 
clerk  in  court  shall  cause  the  entries  of  the  cause  in  their 
hooks  and  indexes  to  he  marked  Avith  such  distinguishing 
words  or  marks  as  shall  signify  that  the  cause  is  to  l)e 
heard  before  the  lord  chancellor ;  and  in  case  the  clerk  in 
coui-t  so  appl}dng  as  aforesaid  shall  certify  that  any  such 
order  as  aforesaid  has  l)een  made  by  the  master  of  the 
rolls,  and  not  by  the  lord  chancellor  or  vice  chancellor,  or 
that  such  orders  as  aforesaid  have  been  made  ]>}'  l)Oth  the 
lord  chancellor  or  vice  chancellor  and  the  master  of  the 
rolLs,  but  that  the  last  of  such  orders  has  Ijeen  made  by 
the  master  of  the  rolls,  or  (m  case  no  such  order  as  afore- 
said has  been  made  in  the  cause)  that  the  party  desires 
the  cause  to  be  heard  before  the  master  of  the  rolls,  the 
six  clerk  giA^ing  the  certificate  shall  see  that  the  same 
certificate  is  marked,  or  shall  cause  the  same  to  be  marked, 
Avith  the  Avords  "  Mjister  of  the  Rolls ;"  and  the  six  clei-k 
and  clerk  in  coui't  shall  cause  the  entries  of  the  cause  in 
their  books  and  indexes  to  be  marked  Avitli  such  distin- 
guislmig  Avortls  or  marks  as  shall  signify  that  the  cause  is 
to  be  heard  before  the  master  of  the  rolls. 

Order  IV. 
That  the  registrars  of  the  court,  and  the  secretaries  of 
the  lord  chancellor  and  of  the  master  of  the  rolls,  are  not 
at  any  time  after  the  said  20th  day  of  May  instant,  to  set 
doAA'n  to  1)e  heard  any  cause  in  Avhich  the  certificate  of  the 
cause  bemg  ready  for  hearing  shall  not  l)e  marked  in  the 


676  APPENDIX. 


manner  directed  by  tlie  second  and  third  orders,  and  are 
not,  after  the  date  of  these  orders,  to  set  down  to  "be  heard 
before  the  master  of  the  rolls  any  cause,  furtlier  directions, 
or  exceptions,  which  is  or  are  now  set  down  to  l)e  heard 
before  the  lord  chancellor,  and  are  not,  without  special 
order  of  the  lord  chancellor,  to  set  down  to  be  heard 
before  the  lord  chancellor  any  cause,  further  directions,  or 
exceptions,  which  is  or  are  now  set  down  to  be  heard 
before  the  master  of  the  rolls. 

Order  V. 
That  in  every  petition,  praying  that  a  day  may  be 
appointed  for  arguing  a  lAen  or  demurrer  put  in  to  any 
information  or  bill  filed  on  or  after  the  said  20th  day  of 
May,  it  shall  be  stated  whether  the  information  or  bill  to 
which  such  plea  or  demurrer  is  put  in  is  marked  with  the 
words  "  Lord  Chancellor,"  or  with  the  words  "  Master  of 
the  RoUs." 

Order  VL 

That,  from  and  after  the  said  20th  day  of  May  instant, 
the  several  causes  and  matters  hereinafter  mentioned,  not 
already  set  down,  shall  be  set  down  to  be  heard  before 
the  lord  chancellor,  and  shall  not,  without  special  order  of 
the  lord  chancellor,  be  set  down  to  be  heard  before  the 
master  of  the  rolls. 

1.  Every  plea  or  demiuTer,  and  all  exceptions  in  any 
cause  in  which  the  information  or  bill  shall  be  marked 
with  the  words  "Lord  Chancellor,"  or  inwliich  the  entries 
of  the  cause  in  the  six  clerks'  books  shall  Ije  so  marked  as 
to  signify  that  the  same  is  to  he  heard  before  the  lord 
chancellor. 


APPENDIX.  677 


2.  Every  cause  in  wliieli  tlie  certificate  of  the  cause 
beiui^  ready  for  liearing  shall  be  marked  w  itli  th(3  ANords 
"Lord  Chancellor." 

3.  Every  cause  requiring  to  be  heard  for  further  direc- 
tions, or  on  the  equity  reserved,  and  in  which  the  niaster^H 
report  has  l)een  or  shall  be  made,  or  a  trial  at  law  has 
been  or  shall  be  had,  or  the  certificate  of  a  court  of  com- 
mon law  has  been  or  shall  be  obtained  in  pursuance  of  a 
decree  or  order  pronounced  by  the  lord  chancellor  or  \4ce 
chancellor. 

4.  Every  exception  or  set  of  exceptions  taken  to  any 
report  made  by  a  master  in  ordinary,  in  pursuance  of  a 
decree,  or  an  order  of  reference,  (not  being  an  order  ob- 
tained as  of  course,)  made  ])y  the  lord  chancellor  or  the 
vice  chancellor. 

Vide  WiIJd?is  vs.  Stevens,  10  Sim.  G17. 

Order  VII. 
That,  from  and  after  the  said  20th  day  of  May  instant, 
every  petition  presented  or  motion  made  under  or  pursu- 
ant to  the  lil)erty  to  apply  contained  in  any  decree  or  de- 
cretal order  of  the  lord  chancellor  or  vice  chancellor,  shall, 
as  to  petitions,  be  addressed  to  and  set  down  to  be  heard 
before  the  lord  chancellor,  and  shall  as  to  motions  be  made 
before  the  lord  chancellor  or  vice  chancellor  ;  and  that  no 
such  petition  or  motion  shall,  without  special  order  of  the 
lord  chancellor,  be  addressed  to  or  made  before  the  master 
of  the  rolls. 

Order  VIII. 
That  all  such  pleas,  demurrers,  causes,  further  directions, 
exceptions,  and  petitions,  to  be  so  set  down  to  be  heard 


578  APPENDIX. 


before  the  lord  cliaiicellor,  as  liereinbefore  is  directed,  shall 
be  heard  and  determined  in  the  same  manner,  and  be  sul  )- 
ject  to  the  same  rules,  as  pleas,  demurrers,  canses,  further 
directions,  exceptions,  and  petitions  set  down  before  the 
lord  chancellor,  have  heretofore  been  heard  and  deter- 
mined. 

Order  IX. 
Til  at,  from  and  after  the  said  20th  day  of  May  instant, 
all  interlocutory  applications  by  way  of  motion  or  petition, 
(other  than  applications  for  orders  of  course,)  shall,  in  the 
several  cases  hereinafter  mentioned,  be  made  to  the  lord 
chancellor  or  to  the  \ace  chancellor,  and  shall  not,  without 
special  order  of  the  lord  chancellor,  l)e  made  to  the  mas- 
ter of  the  rolls ;  ^az.  in  the  several  cases  following : 

1.  Where  the  original  information  or  bill  is  marked  with 
the  words  "  Lord  Chancellor." 

2.  Where  the  cause  has  not  been  set  down  for  hearing, 
and  any  order  disposing  of  any  plea  or  demurrer  or  any 
special  order  upon  merits,  shown  by  answer  or  l)y  affida- 
vit has  been  made  in  the  cause  by  the  lord  chancellor  or 
vice  chancellor,  and  no  such  order  has  Ijeen  made  Ijy  the 
master  of  the  rolls. 

3.  Where  the  cause  has  not  T)een  set  down  for  hearing, 
and  orders  disposing  of  pleas  or  demurrers  or  special  orders 
upon  merits,  shown  l>y  answer  or  affidavit,  have  been  made 
by  Ijoth  the  lord  chancellor  or  \'ice  chancellor  and  the 
master  of  the  rolls,  but  the  last  of  such  orders  was  made 
by  the  lord  chancellor  or  vice  chancellor. 

4.  Where  the  cause  lias  been  set  down  for  hearing  be- 
fore the  lord  chancellor,  either  for  original  hearing  or  for 
further  directions,  or  on  the  equity  reserved. 


APPENDIX.  679 


!).  AVliciv  tlio  decree  oi*  hist  decretal  ordci-  was  madr  liy 
the  loid  cliaiiccllni-  or  \  ice  cliaiicclloi-,  except  jii  cases  wliere 
tlie  decree  or  last  decretal  ordei'  was  made;  l)y  tlic  loi'd 
rliaiicellor  on  a  reliearing-  of  a  decree  or  decretal  nidci- 
luade  ])y  the  master  of  the  rolls. 

Order  X. 
That,  from  and  after  the  said  20th  day  of  May  instant, 
the  several  causes  and  matters  hereinafter  mentioned,  not 
already  set  down,  shall  he  set  down  to  be  heard  before  the 
master  of  the  rolls,  and  shall  not  otherwise  than  for  the 
])nrpose  of  rehearing  be  set  down  to  be  heard  before  the 
lord  chancellor, 

1.  Every  })lea  or  demurrer,  and  all  exceptions  in  any 
cause  in  which  the  information  or  bill  shall  l)e  marked 
^dtli  the  Avords  "Master  of  the  Ivollsf  or  in  which  the  en- 
tries of  the  cause  in  the  six  clerk's  books  shall  l)e  so 
marked  as  to  sig-nify  that  the  same  is  to  be  heard  l)efore 
the  master  of  the  I'olls. 

2.  Every  cause  in  M-hich  the  cei-tificate  of  the  same  being 
ready  for  hearing  shall  be  mai-ked  with  the  words  "Master 
of  the  liolls." 

3.  Every  cause  requiring  to  be  heard  for  further  direc- 
tions or  on  the  equity  reserved,  and  in  which  the  masters 
re])ort  has  been  or  shall  be  made,  or  a  trial  at  hnv  has 
been  or  shall  be  had,  or  the  certificate  of  a  court  of  com- 
mon lav»  lias  been  or  shall  be  obtained,  in  ]tursuance  of  a 
decree  or  order  ])ronounced  by  the  master  of  the  rolls. 

4.  Every  exception,  or  set  of  exceptions,  taken  to  any 
report  made  by  a  master  in  ordinary,  pursuant  to  a  decree 
or  an  order  of  reference  (not  being  an  order  obtained  as 
of  course)  made  bv  the  ma-;ter  of  the  r(»lls. 


680  APPENDIX. 


Order  XI. 
Tliat,  from  and  after  tlie  said  20tli  da}-  of  May  instant, 
every  petition  presented,  or  motion  made,  nnder  or  pnrsn- 
ant  to  tlie  liljerty  to  apply  contained  in  any  decree  or  de- 
cretal order  of  tlie  master  of  the  rolls,  sliall  Ije  addressed 
to  and  set  down  to  be  heard,  or  sliall  be  made,  before  the 
master  of  the  rolls ;  and  that,  except  for  the  pnrpose  of 
rehearino;  an  order  of  the  master  of  the  rolls,  no  such  pe- 
tition  or  motion  shall  be  addressed  to  or  made  before  the 
lord  chancellor. 

Vide  Ahurrow  vs.  Ahnrroio,  10  Sim.  602. 

Order  XII. 
That,  from  and  after  the  said  20th  day  of  May  instant, 
all  interlocutory  applications,  by  way  of  motion  or  petition, 
(other  than  ai)plications  for  orders  of  course,)  shall,  in  the 
several  cases  hereinafter  mentioned,  Ije  made  to  the  master 
of  the  rolls,  and  shall  not,  except  for  the  purpose  of  re- 
hearing an  order  of  the  master  of  the  rolls,  be  made  to 
the  lord  chancellor;  viz.  in  the  several  cases  folloTvdng: 

1.  Where  the  original  information  or  1jill  is  marked  with 
the  words  "  Master  of  the  Eolls." 

2.  Where  the  cause  has  not  been  set  down  for  hearing, 
and  any  order  disposing  of  any  plea  or  demurrer,  or  any 
special  order  upon  meiits  shown  by  answer  or  affidavit, 
has  been  made  in  the  cause  by  the  master  of  the  rolls,  and 
no  such  order  has  been  made  by  tlie  lord  chancellor  or  vice 
chancellor. 

3.  Where  tlie  cause  has  not  been  set  down  for  hearing, 
and  orders  disposing  of  pleas  or  demurrers,  or  special  order 
upon  merits  shown  by  answer  or  affidavit,  have  been  made 


APPENDIX.  681 


l)y  Loth  tlic  lord  cliMiiccllor  or  vice  clianocllor  aii<l  tin? 
ma.stt'r  of  tlie  r(»lls,  hut  tlic  last  of  such  ordci's  has  been 
made  by  tlie  mt^ster  of  the  I'olk. 

4.  Wliere  the  cause  lias  been  set  down  for  hcariiii^  be- 
fore the  master  of  the  rolls,  either  for  oriii-inal  heariiii^  or 
for  further  directions,  or  on  the  equity  reserved,  and  is  not 
now  set  down  to  be  so  heard  before  the  lord  chancellor. 

5.  Where  the  decree  or  hist  decretal  order  was  made  by 
the  master  of  the  rolls  or  l)y  the  lord  chancellor,  on  the 
rehearing  of  a  decree  or  decretal  order  of  the  master  of 
tlie  rolls. 

Vide  Wriglit  vs.  Irving,  10  Sim.  (!y2o. 

Order  XIII. 
That  the  above  orders  as  to  interlocutory  a])i)lications 
shall  not  extend  to  any  applications  for  orders  of  course, 
nor  to  any  petitions  presented,  or  notice  of  motion  given, 
before  the  18th  day  of  May  instant. 

Order  XIV. 

That  all  applications  for  orders  of  course,  to  l)e  obtained 
on  j»etition  or  motion,  shall,  and  may  be  made  in  the  same 
maimer  in  all  res2:)ects,  as  if  the  above  orders  had  not  lieen 
made ;  but  as  to  all  cases  in  which,  according  to  the  0th 
j)receding  order,  interlocutory  applications  (other  than 
api)lications  for  orders  of  course)  are  directed  to  be  made 
before  the  L^rd  chancellor  or  vice  chancellor,  if  any  order 
ni-si^  upon  ^'hicli  cause  against  making  the  order  absolute 
is  to  be  shown  to  the  court,  shall  l)e  oljtained  as  of  course 
from  the  master  of  the  rolls,  such  cause  shall  be  shown  l^e- 
fore  the  lord  chancellor  or  vice  chancellor;  and  if  any 
order   of  reference   to   the   master   in  ordinary  shall  be 


682  APPENDIX. 


ol)tnIiied  as  of  course  tVuiii  the  master  of  tlie  rolls,  and  the 
master's  report  pursiiaiit  to  such  order  of  reference  shall 
he  excepted  to,  the  exceptions  thereto  shall  be  heard  before 
the  lord  chancellor  or  the  vice  chancellor  ;  and  in  all  cases 
in  which,  according  to  the  12th  preceding  ordei",  interlo- 
cutory applications  (other  than  applications  for  orders  of 
course)  are  directed  to  be  made  before  the  master  of  the 
rolls,  if  any  order  nisi^  upon  which  cause  against  making 
the  order  absolute  is  to  be  shown  to  the  court,  shall  be 
obtained  avS  of  coui'se  from  the  lord  chancellor  or  vice  chan- 
cellor, such  cause  shall  be  shown  before  the  master  of  the 
rolls ;  and  if  any  order  of  reference  to  the  master  in  ordi- 
nary shall  be  obtained  as  of  course  from  tlie  lord  chancellor 
or  vice  chancellor,  and  the  master's  report  pursuant  to  such 
order  of  reference  shall  be  excepted  to,  the  exceptions  there- 
to shall  l)e  heard  before  the  master  of  the  rolls. 

Vide  Senior  vs.  WiRcs,  2  Keen,  210. 

Order  XV. 
Tliat,  in  the  interval  l)etween  tlie  close  of  the  sittings 
after  any  term,  and  the  commencement  of  the  sittings  before 
or  at  the  beginning  of  the  next  ensuing  term,  applications 
for  special  orders  may  l)e  made  to  any  judge  of  the  court 
in  the  same  manner  as  if  these  orders  had  not  been  made ; 
but  that  the  orders  which  shall  l)e  made  in  any  such  inter- 
val by  the  lord  chancellor,  or  by  the  master  of  the  rolls, 
or  by  the  vice  chancellor,  shall,  if  not  umde  by  the  judge 
to  whom  the  application,  if  made  during  the  ordinary  sit- 
tin.o-s  of  the  court,  would  have  been  made  pursuant  to  the 
directions  contained  in  these  orders,  T)e  marked  as  having 
been  made  for  such  judge,  and  shall  in  the  future  proceed- 


APPENDIX.  683 


inufs  of  tlie  cause  lie  (Icciiicd  in  Ix;  tlic  oi-dcr  of  sucli  juduc 
in  all  respects  save  this;  that  no  older  >o  made  hy  one 
jud<^e  for  anotlicr  under  the  circumstances  aforesaid  sjiall 
l>e  relieard  for  tlic  ])U]'|)ose  of  Ix'ini^-  discharuci]  or  xai-icij 
otlier\\is(i  tlian  jjy  the  hjrd  cliancellor. 

Order  XVI. 
Tliat,  from  and  after  the  said  20tli  day  of  May  instant, 
all  matters  Avhich  under  and  Ly  virtue  of  any  act  of  ])arlia- 
ment  or  otherwise  tlu;  court  hath  jurisdiction  to  licai-  and 
determine  in  a  sminnary  way,  and  -which  shall  he  in  the 
fii-st  instance  hrought  under  the  consideration  of  tlie  court 
upon  a  petition  presented  to  the  lord  chancel hn-,  shall,  in 
any  subsequent  stage  of  the  proceedings  res])cctin<j-  the 
same  matters,  he  heard  and  determined  hy  the  lord  chan- 
cellor or  vice  chancellor ;  and  that  no  ])etiti(»n  resj)ectinf 
the  same  matters  in  any  subsequent  stage  of  th(^  ])roceed- 
ings  relating  thereto,  shall,  without  s])ecial  order  of  tlie 
lord  chancellor,  he  set  doAvn  to  he  heard  before  the  master 
of  the  rolls  ;  and  that  all  such  matters  as  aforesaid  which 
shall  be  in  the  iirst  instance  brought  under  the  considera- 
tion of  the  court  ujjou  a  petition  of  themastei'  of  the  rolls 
shall,  in  any  subsequent  stage  of  the  proceedings  respect- 
ing the  same  nnitters,  be  heard  and  determined  bv  the 
master  of  the  rolls;  and  that  no  petition  res])ectin«i-  the 
same  matters  in  any  subsequent  stage  of  the  proceedino-s 
relating  thereto,  shall,  otherwise  than  for  the  })uri)ose  of 
reheai-ing  an  ortler  of  the  master  of  the  rolls,  be  set  down 
to  be  heard  before  the  lord  chancellor. 

co'jtkxjia.ai,  c. 

Laxgdale,  M.  K. 

Lancklot  1Siiai)wj;ij..  ^^  C. 


ORDERS  OF  MAY  9,  1839. 


Okdeh  I. 

That  in  all  cases  In  A\liicli  it  shall  1)6  alleged  that  the 
plaintilt'  is  prosecuting  the  defendant,  in  this  court  and 
also  in  some  other  court,  for  the  same  matter,  the  defendant 
in  eight  days  after  filing  his  answer  or  further  answer  to 
the  plaintiff's  bill,  shall  he  entitled,  as  of  com'se,  on  motion 
or  petition,  to  the  usual  order  for  the  plaintiff  to  make  his 
election  in  A\'hich  court  he  "will  pi-oceed,  with  the  usual 
directions  in  that  behalf,  uidess  the  plaintiff  shall,  before 
the  expiration  of  the  same  eight  days,  have  delivei'ed 
exceptions  to  the  defendant's  answer,  or  have  referred  his 
further  answer  on  former  exceptions.  And  in  case  the 
plaintiff  shall  have  delivered  such  exceptions,  or  referred 
the  defendant's  further  answer  within  such  time,  the 
defendant  shall  lie  at  lil)erty,  by  notice  in  writing  to  be 
served  on  the  plamtiti:''s  clerk  in  court,  to  require  the 
plaintiff  to  procure  the  master's  report  on  such  exceptions, 
within  four  days  from  the  service  of  such  notice.  And  if 
the  plaintiff,  being  so  served  with  such  notice,  shall  not 
procure  the  master's  report  in  four  days  accordingly,  or  if 
the  exceptions  shall  not  be  allowed,  the  defendant  shall 
then  be  entitled,  as  of  coui*se,  on  motion  or  jietition,  to 
the  usual  order  for  the  jilaintiff  to  elect  in  which  court  lu^ 


686  APPENDIX. 


will  proceed,  with  tlie  iisnal  directions.  But  in  eitlier  of 
such  cases,  the  i)laintirt'  sliall  Ije  at  liberty  to  move  that 
such  order  may  Ije  discharged  on  the  merits  confessed  in 
the  aiisAver. 

Order  II. 
That  the  plaintitf  in  any  injunction  cause  having  ob- 
tained the  coHiiiion  injunction  to  stay  proceedings  at  law, 
may  (either  before  or  after  the  answer  of  the  defendant 
shall  be  put  in,  and  whetlier  such  injunction  shall  or  shall 
not  have  T)een  continued  to  the  hearing  of  the  cause) 
ol)tain  an  order,  as  of  course,  for  leave  to  amend  the  bill 
without  prejudice  to  the  injunction ;  T)ut  that  such  order 
shaU  contain  an  undertaking  by  the  plaintiff  to  amend  the 
bill  within  one  week  after  the  date  of  the  order,  and  in 
default  thereof  the  order  shall  become  void.  And  that  in 
case  the  bill  shall  be  amended  pursuant  to  such  order,  the 
defendant  shall  thereupon,  and  although  he  may  not  have 
put  in  his  answer  to  the  bill  or  the  amendments  thereof, 
be  at  liberty  to  move  the  court  on  notice,  to  dissolve  the 
injunction,  on  the  ground  that  the  bill  as  amended  does 
not,  even  if  the  amendments  be  true,  entitle  the  plaintiff 
thereto. 

Order  III. 
T]iat  in  case  an  injunction  to  stay  proceedings  at  law 
shall  be  jirayed  for  by  the  bill,  and  shall  either  not  be 
obtained,  or  having  been  obtained,  shall  have  been  dis- 
solved upon  the  merits  stated  in  tlie  answer,  and  the 
plaintiff  shall  afterwards  amend  his  l)ill,  and  the  defendant 
shall  not  plead,  answer,  or  demur  to  the  amended  bill 
within  eight  days  after  appearance,  the  plaintiff  shall  be 


APPENDIX.  687 


entitled  to  move  for  an  injunction,  upon  affidavit  of  tlie 
truth  of  tlie  amendments. 

Order  IV. 
That  foreclosure  causes  when  ready  for  hearinir,  may 
be  ordered  to  be  advanced  for  Iieai-inn",  under  the  s-iiiie 
circumstances,   and   subject   to   the   same  rules   tus  other 
causes  may  be  ordered  to  be  so  advanced. 

Vide  Lcuin  vs.  Molinc,  1  Beav.  99. 

Order  V. 

That  in  all  cases  in  which  it  shall  appear,  that  certain 
jireliminary  accounts  and  inquiries  must  be  tiiken  and 
made,  l)efore  the  rights  and  interests  of  the  parties  to  the 
cause  can  be  ascertained,  or  the  (questions  therein  arising 
can  be  detennined,  the  plaintiff  shall  be  at  liberty,  at  any 
time  after  the  defendants  shall  have  appeared  to  the  bill, 
to  move  the  court  on  notice,  that  such  inquiries  and 
accounts  shall  be  made  and  taken ;  and  that  an  order 
referring  it  to  the  master  to  make  sueli  iiu^uiries,  and  take 
such  accounts,  shall  thereupon  be  made,  without  prejudice 
to  any  question  in  the  cause,  it'  it  shall  appear  to  the  court 
that  the  same  will  l)e  beneficial  to  such  (if  any)  parties  to 
tlie  cause  as  may  not  l)e  competent  to  consent  thereto,  and 
that  the  same  is  consented  to  b}^  such  (if  any)  of  the 
defendants,  as,  being  competent  to  consent,  have  not  put 
in  their  answer  to  the  bill,  and  that  the  same  is  consented 
to  l)y,  or  is  proper  to  be  made  upon  the  statements 
contained  in  the  answers  of  such  (if  any)  of  the  defend- 
ants as  have  answered  the  bill. 

Vide  Logan  vs.  Baines,  10  Sim.  604.      Wilson  vs.  Ajtjflcgarf/i,  ib. 
657. 


688  APPENDIX. 


Okder  VI. 
That  wlienever  any  order  of  course  obtained  from  tlie 
master  of  tlie  rolls,  in  any  cause  marked  for  or  set  down 
to  be  heard  before  the  lord  chancellor  pursuant  to  the 
general  order  of  the  5th  day  of  May,  1837,  shall  be 
alleo-ed  to  have  been  irregularly  ol)tained,  any  application 
to  discharge  the  same  for  irregularity,  shall,  in  the  first 
instance  be  made  to  the  master  of  the  rolls,  and  such 
cause  and  all  other  applications  to  be  made  therein,  shall 
nevertheless  continue  subject  to  all  the  regulations  of  the 
said  general  order,  as  if  this  order  had  not  l)een  made. 

cotteniiam,  c. 
Langdale,  M.  R. 
Lancelot  Shadwell,  V.  C. 


ORDERS  OF  MAY  10,  1839. 


Order  I. 
That  every  person  to  wlioni,  in  any  cause  or  matter 
pending  in  this  court,  any  sum  of  money  or  any  costs  liave 
been  ordered  to  he  paid,  shall,  after  the  lapse  of  one  month 
from  the  time  when  such  order  for  payment  was  duly 
passed  and  entered,  be  entitled  by  his  clerk  in  court  to  sue 
out  one  or  more  writ  or  writs  of  fieri  facias^  or  A\rit  or 
writs  of  elegit^  of  the  form  hereinafter  stated,  or  as  near 
thereto  as  the  circumstances  of  the  case  may  require. 

Order  II. 
That  upon  every  such  order  hereafter  to  be  entered,  the 
entering  clerk  of  this  court,  in  whose  di^dsion  the  same 
may  be,  shall,  at  the  request  of  the  party  lea\'ing  the  same, 
mark  the  day  of  the  month  and  year  on  which  the  same 
shall  be  so  left  for  entry,  and  no  writ  oi  fieri  facias  or  elegit 
shall  be  sued  out  uj)()ii  any  such  order,  unless  the  date  of 
such  entry  shall  be  so  marked  thereon  as  aforesaid. 

Order  III. 
That  such  writs,  when  sealed,  shall  be  delivered  to  the 
sheriff  or  other  officer  to  whom  the  execution  of  tlie  like 
wi-its  issuing  out  of  the  superior  courts  of  common  laAv  be- 
44 


690  APPENDIX. 


longs,  and  sliall  be  executed  by  sucli  slieriff  or  otlier  officer, 
as  neai'ly  as  may  be,  in  tlie  same  manner  in  wliicli  lie  dotli 
or  ought  to  execute  such  like  writs ;  and  such  writs,  when 
returned  by  such  sheriff  or  other  officer,  shall  be  delivered 
to  the  clerks  in  court,  by  whom  respectively  they  were  sued 
out,  or  be  left  at  their  respective  seats,  and  shall  thereupon 
be  filed  as  of  record  in  the  office  of  the  six  clerks  of  this 
court.  And  that  for  the  execution  of  such  Avrits,  such 
sheriff  or  other  officer  shall  not  take  or  be  allowed  any  fees, 
other  than  such  as  are  or  shall  be  from  time  to  time  al- 
lowed by  lawful  authority,  for  the  execution  of  the  hke 
writs  issuing  out  of  the  superior  courts  of  common  law. 

Order  IV. 
That  if  it  shall  appear  upon  the  return  of  any  such  writ 
of  fieri  facias  as  aforesaid,  that  the  sheriff  or  other  officer 
hath  by  virtue  of  such  writ  seized  but  not  sold  any  goods 
of  the  j)erson  ordered  to  j)ay  such  sum  of  money  or  costs  as 
aforesaid,  the  person  to  whom  such  sum  of  money  or  costs 
is  payable,  shall,  immediately  after  such  writ  with  such 
return  shall  be  filed  as  of  record,  be  at  liberty  by  his  clerk 
in  court  to  sue  out  a  writ  of  venditioni  exponas  m  the  form 
hereinafter  stated,  or  as  near  thereto  as  the  circumstances 
of  the  case  may  require. 

Order  V. 
That  on  every  such  writ  of  fieri  facias  and  elegit  so  to 
be  issued  as  aforesaid,  there  shall  be  endorsed  the  words, 
"By  the  Court,"  and  also  thereunder  the  calling  and  place 
of  residence  of  the  party  against  whom  such  Avrit  shall  be 
issued,  and  also  the  name  and  residence  or  place  of  business 
of  the  sohcitor  at  whose  instance  the  same  shall  be  issued, 


APPENDIX.  691 


and  the  name  of  the  clerk  in  court  issuing  the  8ame,  and 
that  every  such  wnt  be  also  endorsed  for  the  sum  to  1x3 
levied  according  to  the  form  used  u])<)n  like  writs  issuing 
out  of  the  superior  com-ts  of  c(jmmon  law. 

Order  VI. 

That  for  every  such  writ  oi  fieri  facias  or  venditioni  ex- 
ponas so  to  be  issued  a.s  aforesaid,  there  shall  be  allowed  to 
the  clerk  in  court  issuing  the  same  the  sura  of  eighteen 
shillings  and  seven-pence,  and  for  every  such  writ  of  elegit 
the  sum  of  one  pound  ten  shillings,  and  that  there  be  al- 
lowed to  the  solicitor  at  whose  instance  any  writ  of  fieri 
facias^  elegit^  w  venditioni  edc/ponas  shall  be  issued,  the  sum 
of  six  shillings  and  eight-pence  for  instructions  for  the  said 
writ,  and  that  there  be  also  allowed  to  such  solicitor  the 
further  sum  of  six  shillings  and  eight-pence  for  attending 
to  procure  a  warrant,  and  for  attending  to  instruct  the 
officer  charc-cd  with  the  execution  of  such  writ. 

O 

COTTENHAM,  C. 

Langdale,  M.  E.. 
Lancelot  Siiadwell,  V.  C. 


ORDERS  OF  AUGUST  26,  1841. 


Order  I. 

That  there  shall  forthwith  be  prepared  a  proper  alpha- 
betical book  for  the  pui'poses  after  mentioned,  and  that 
such  book  shall  be  called  the  solicitors'  book,  and  shall  be 
publicly  kept  at  the  office  of  the  six  clerks,  to  be  there 
inspected  without  fee  or  reward. 

Order  II. 
That  every  solicitor,  before  he  practice  in  this  court,  in  his 
own  name  solely,  and  not  by  an  agent,  whose  name  shall  be 
duly  entered  as  after  mentioned,  and  every  solicitor,  before 
he  practice  as  such  agent,  shall  cause  to  be  entered  in  the 
solicitors'  book  in  alphal)etical  order,  his  name  and  place 
of  business,  or  some  other  proper  place  in  London,  West- 
minster, or  the  borough  of  Southwark,  or  within  two  miles 
of  Lincoln's  Inn  Hall,  Avhere  he  may  l)e  served  Avith  writs, 
notices,  orders,  warrants,  rules,  and  other  documents,  pro- 
ceeding's, and  written  communications  in  causes  and  matters 
depending  in  this  court ;  and  as  often  as  any  such  solicitor 
shall  change  his  place  of  business  or  the  place  where  he 
may  be  served  as  aforesaid,  he  shall  cause  a  like  entry 
thereof  to  be  made  in  the  solicitors'  book ;  and  that  the 
above  mentioned  entries  shall  be  made  in  such  book  by 


694  APPENDIX. 


the  said  six  clerks,  who  shall  be  entitled  to  a  fee  of  one 
shilling  for  every  such  entry ;  and  that  the  finid  arising 
from  such  payment  shall  he  ap])]ied,  in  the  first  instance, 
in  paying  the  expenses  of  providing  and  keeping  such  book. 

Order  III. 
That  all  writs,  notices,  orders,  warrants,  rules,  and 
other  documents,  proceedings,  and  written  communications, 
which  do  not  require  personal  service  upon  tlie  23arty 
to  be  affected  tlierel>y,  shall  be  deemed  sufficiently  served 
if  such  document,  or  a  copy  thereof,  as  the  case  may  be, 
shall  be  left  at  the  place  lastly  entered  in  the  solicitor's 
book  by  the  solicitor  of  such  party ;  and  if  any  solicitor 
shall  neglect  to  cause  such  entry  to  be  made  in  the 
solicitor's  book  as  is  required  by  the  second  order,  then 
the  fixing  up  a  copy  of  any  such  writ,  notice,  order, 
warrant,  rule,  or  other  document,  proceeding,  or  written 
communication  for  such  solicitor  in  the  said  six  clerks' 
office,  shall  be  deemed  a  sufficient  service  on  him,  unless 
the  court  shall,  under  special  cii'cumstances,  think  fit  to 
direct  otherwise. 

Order  IV. 
That  if  any  solicitor  shall  give  his  consent  in  writing 
that  the  service  of  all  or  any  writs,  notices,  orders, 
warrants,  rules,  or  otlier  documents  may  be  made  upon 
him  through  the  post-office  or  otherwise,  such  service  shall 
be  deemed  sufficient,  if  made  in  such  manner  as  such 
solicitor  shall  have  so  agreed  to  accept;  but  it  shall  be 
competent  for  any  solicitor  giving  such  consent,  at  any 
time  to  revoke  the  same  by  notice  in  writing. 


APPENDIX.  695 


Ordkh  V. 
Tliat  no  person  sliall  Lc  allowed  to  appear  or  act,  either 
in  person,  by  solicitor  or  counsel,  or  to  take  any  ])rocee(l- 
in,o-s  A\^liatever  in  tills  court,  eitlier  as  plaintill*  defendant, 
})etiti()ner,  respondent,  party  intervening,  or  otliervvise, 
until  an  entiy  of  the  name  of  his  solicitor  and  his  solicitor's 
agent,  if  tliere  he  one,  or  if  he  act  in  person,  his  own 
name,  and  address  for  ser\ice  shall  have  been  made  in 
the  solicitor's  book  at  the  oflice  of  the  six  clerks;  but  if 
such  address  of  any  person  so  acting  in  person,  shall  not 
be  within  London,  "Westminster,  or  the  borough  of  South- 
wark,  or  within  two  miles  of  Lincoln's  Inn  Hall,  then  all 
services  uj^on  such  person,  not  requiring  to  be  made 
personally,  sliall  l)e  deemed  sufficient,  if  a  copy  of  the  writ, 
notice,  order,  warrant,  rule,  or  other  document  to  be 
served,  be  transmitted  to  him  through  her  majesty's  post- 
office,  to  such  address  as  aforesaid. 

Order  VI. 
That  no  writ  of  attachment  with  proclamations,  nor  any 
writ  of  rebellion,  l)e  hereafter  issued  for  the  purpose  of 
compelling  obedience  to  any  process,  order,  or  decree  of 
the  court. 

Order  VII. 
That  no  order  shall  hereafter  be  made  for  a  messenger, 
or  for  the  sergeant-at-arms,  to  take  the  body  of  the  defend- 
ant for  the  purpose  of  compelling  him  to  appear  to  the  bill. 

Order  VIII. 
That  if  the  defendant,  being  duly  served  with  a  sub- 
poena to  appear  to  and  answer  the  bill,  shall  refuse  or 


696  APPENDIX. 


neglect  to  appear  thereto,  the  plaintiff  shall,  after  the 
expiration  of  eight  days  from  such  service,  be  at  liberty  to 
apply  to  the  court  for  leave  to  enter  an  appearance  for  the 
defendant.  And  the  court,  being  satisfied  that  the  sub- 
poena has  been  duly  served,  and  that  no  appearance  has 
been  entered  by  the  defendant,  may  give  such  leave 
accordingly;  and  that  thereupon  the  plaintiff  may  cause 
an  appearance  to  be  entered  for  the  defendant.  And 
thereupon  such  further  proceedings  may  be  had  in  the 
cause  as  if  the  defendant  had  actually  appeared. 

Order  IX. 
That  upon  the  sheriff's  return,  ^^non  est  ■inventus^''  to  an 
attachment  issued  against  the  defendant  for  not  answering 
the  bill,  and  upon  affidavit  made  that  due  diligence  was 
used  to  ascertain  where  such  defendant  was  at  the  time  of 
issuing  such  writ,  and  in  endeavoring  to  apprehend  such 
defendant  under  the  same,  and  that  the  person  suing  forth 
such  writ  verily  believed,  at  the  time  of  suing  forth  the 
same,  that  such  defendant  was  in  the  county  into  which 
such  writ  was  issued,  the  plaintiff  shall  l)e  entitled  to  a 
writ  of  sequestration  in  the  same  manner  that  he  is  now 
entitled  to  such  writ,  upon  the  like  return  made  by  the 
sergeant-at-arms. 

Order  X. 
That  no  writ  of  execution,  nor  any  writ  of  attachment 
shall  hereafter  be  issued  for  the  purpose  of  requiring  or 
compelling  obedience  to  any  order  or  decree  of  the  high 
court  of  chancery ;  1)ut  that  the  |)arty  required  by  any 
such  order  to  do  any  act,  shall,  upon  being  duly  served 


APPENDIX.  697 


with  such  order,  be  held  bound  to  do  sucli  uct  in  o])edi- 
ence  to  the  order. 

Order  XI. 
Tliat  if  any  party  who  is  by  an  order  or  decree  ordered 
to  pay  money,  or  do  any  other  act  in  a  hmited  time,  shall, 
after  due  service  of  such  order,  refuse  or  neglect  to  obey 
the  same  according  to  the  exigency  thereof,  the  party 
duly  prosecuting  such  order,  shall,  at  the  expiration  of  the 
time  limited  for  the  performance  thereof,  be  entitled  to  an 
order  for  a  sergeant-at-arms,  and  such  other  process  as  he 
hath  hitherto  l)een  entitled  to  upon  a  return,  '■^non  est 
invent iLS^''  by  the  commissioners  named  in  a  commission  of 
rebellion  issued  for  non-performance  of  a  decree  or  order. 

Order  XII. 
That  every  order  or  decree  requiring  any  party  to  do 
an  act  thereby  ordered,  shall  state  the  time  after  service 
of  the  decree  or  order  within  wliic-h  the  act  is  to  be  done; 
and  that  upon  the  copy  of  the  order,  which  shall  be  served 
upon  the  party  required  to  obey  the  same,  there  shall  be 
endorsed  a  memorandum,  in  the  words,  or  to  the  effect 
following,  viz :  "  If  you,  the  within  named  A.  B.,  neglect  to 
perform  this  order  by  the  time  therein  limited,  you  will  be 
liable  to  be  arrested  by  the  sergeant-at-arms  attending  the 
high  court  of  chancery ;  and  also  be  liable  to  have  your 
estate  sequestered  for  the  purpose  of  compelling  you  to 
obey  the  same  order." 

Order  XIII. 
That  upon  due  ser\'ice  of  a  decree  or  order  for  delivery 
of  possession,  and  upon  proof  made  of  demand  and  refusal 


698  APPENDIX. 


to  obey  such  order,  the  party  prosecuting  the  same  shall 
be  entitled  to  an  order  for  a  writ  of  assistance. 

Order  XIV. 
That  the  memorandum  at  the  foot  of  the  svlijoana  to 
appear  and  answer,  shall  hereafter  be  in  the  form  following, 
that  is  to  say :  "  Appearances  are  to  be  entered  at  the  Six 
Clerks'  office  in  Chancery  Lane,  London ;  and  if  you  do 
not  cause  your  appearance  to  be  entered  within  the  time 
limited  by  the  above  writ,  the  plaintiif  will  be  at  liberty 
to  enter  an  appearance  for  you ;  and  you  will  be  subject 
to  an  attachment  and  the  other  consequences  of  not  answer- 
ing the  plaintiif 's  bill,  if  you  do  not  put  in  your  answer 
thereto  within  the  time  limited  by  the  general  orders  of 
the  court  for  that  purpose." 

Order  XV. 
Tliat  every  person  not  being  a  party  in  any  cause,  who 
has  obtained  an  order,  or  in  whose  favor  an  order  shall 
have  been  made,  shall  be  entitled  to  enfore  obedience  to 
such  order  by  the  same  process  as  if  he  were  a  party  to 
the  cause ;  and  every  person,  not  being  a  party  in  any 
cause  against  whom  obedience  to  any  order  of  the  court 
may  be  enforced,  shall  be  liable  to  the  same  ]3rocess  for 
enforcing  obedience  to  such  order  as  if  he  were  a  party  to 
the  cause. 

Order  XVT. 
That  a  defendant  shall  not  be  bound  to  answer  any 
statement  or  charge  in  the  bill,  unless  specially  and  particu- 
larly interrogated  thereto ;  and  a  defendant  shall  not  be 
bound  to  answer  any  interrogatory  in  the  bill,  except  those 


APPENDIX.  G99 


interrof-atories  wliicli  sucli  defeiidaut  is  required  to  answer ; 
and  where  a  defendant  shall  answer  any  statement  or  charge 
in  the  hill,  to  which  he  is  nut  interrogated,  only  hy  stating 
his  ignorance  of  the  matter  so  stated  or  charged,  such  an- 
swer shall  be  deemed  impertinent. 

Order  XVII. 
That  the  interrogatories  contained  in  the  interrogating 
part  of  the  hill  shall  l)e  divided  ms  conveniently  as  may  be 
from  each  other,  and  nund)ered  consecutively  1,  2,  3, 
&c. ;  anil  the  interrogatories  which  each  defendant  is  re- 
quired to  answer  shall  l)e  specified  in  a  note  at  the  foot  of 
the  bill,  in  the  form  or  to  the  effect  following,  that  is  to 
say:  "The  defendant  (A.  B.)  is  required  to  answer  the 
interrogatories  numbered  respectively  1,  2,  8,  <tc. ;"  and 
the  office  copy  of  the  bill  taken  l)y  each  defendant  shall 
not  contain  any  interrogatories  except  those  w^hich  such 
defendant  is  so  required  to  answer,  miless  such  defendant 
shall  require  to  be  furnished  with  a  copy  of  the  whole  bill. 

Order  XVIII. 
That  the  note  at  the  foot  of  the  bill,  specifying  the  inter- 
rogatories which  each  defendant  is  required  to  answer, 
shall  be  considered  and  treated  as  part  of  the  bill,  and  the 
addition  of  any  such  note  to  the  bill,  or  any  alteration  hi, 
or  addition  to  such  note  after  the  l)ill  is  filed,  shall  be  con- 
considered  and  treated  as  an  amendment  to  the  bill. 

Order  XIX. 
That  instead  of  the  words  of  the  bill  now  in  use  preced- 
ing the  interrogating  part  thereof,  and  beginning  with  the 
words   "To  the  end  therefore,"  there  shall  hereafter  be 


700  APPENDIX. 


used  words  in  the  form  or  to  the  effect  following :  "  To  the 
end,  tlierefore,  that  the  said  defendants  may,  if  they  can, 
show  why  your  orator  should  not  have  the  relief  hereby 
prayed,  and  may,  upon  their  several  and  respective  corpo- 
ral oaths,  and  according  to  the  best  and  utmost  of  their 
several  and  respective  knowledge,  remembrance,  informa- 
tion, and  belief,  full,  true,  direct,  and  perfect  answer  make 
to  such  of  the  several  interrogatories  hereinafter  numbered 
and  set  forth,  as  by  the  note  hereunder  written  they  are 
respectively  required  to  answer,  that  is  to  say : 

"  1.  Whether,  <fec. 

"  2.  Whether,  <fec." 

Order  XX. 
That  a  defendant  in  a  country  cause  shall  be  allowed  no 
further  time  for  pleading,  answering,  or  demurring  to  any 
original  or  supplemental  bill,  or  bill  of  revivor,  or  to  any 
amended  bill,  than  is  now  allowed  to  a  defendant  in  a  town 
cause. 

Order  XXI. 
That  after  the  expiration  of  the  time  allowed  to  a  de- 
fendant to  plead,  answer,  or  demur  (not  demurring  alone) 
to  an  original  l)ill,  if  the  defendant  shall  have  filed  no  plea, 
answer,  or  demurrer,  the  plaintiff  shall  be  at  liberty  to  file 
a  note  at  the  six  clerks'  office  to  the  following  effect: 
"  The  plaintiff  intends  to  proceed  with  his  cause  as  if  the 
defendant  had  filed  an  answer,  traversing  the  case  made  by 
the  bill,  and  the  plaintiff  had  replied  to  such  answer,  and 
served  a  subpaaia  to  rejoin."  And  that  a  copy  of  such 
note  shall  be  served  on  such  defendant  in  the  same  manner 
as  a  subpoena  to  rejoin  is  now  served,  and  such  note  when 


APPENDIX.  701 


filed,  (a  copy  thereof  being  so  served,)  shall  have  the  same 
effect  as  if  the  defendant  had  filed  an  answer,  traversing 
the  whole  of  the  bill,  and  the  plaintiff  had  filed  a  replica- 
tion to  such  answer,  and  served  a  subj)oena  to  rejoin.  And 
after  such  note  shall  have  been  so  filed,  and  a  copy  served 
as  aforesaid,  the  defendant  shall  not  be  at  liberty  to  plead, 
answer,  or  demui*  to  the  bill  without  the  special  leave  of 
the  court. 

Order  XXII. 
That  a  plaintiff  shall  not  be  at  liberty  to  file  a  note  under 
the  twenty-first  order,  until  he  has  obtained  an  order  of 
the  court  for  that  purpose,  which  order  shall  be  applied  for 
upon  motion,  without  notice,  and  shall  not  be  made  unless 
the  court  shall  be  satisfied  that  the  defendant  has  been 
served  with  a  subi)cena  to  appear  and  answer  the  bill,  and 
that  the  time  allowed  to  the  defendant  to  j)lead,  answer, 
or  demur  (not  demurring  alone)  has  expired. 

Order  XXIII. 
That  Avhere  no  account,  payment,  conveyance,  or  other 
direct  relief  is  sought  against  a  party  to  a  suit,  it  shall  not 
be  necessary  for  the  ])laintift'  to  recpiire  such  party,  not  be- 
ing an  infant,  to  appear  to  and  answer  the  \A\\.  But  the 
plaintiff  shall  be  at  libei'ty  to  serve  such  party,  not  being 
an  infant,  with  a  copy  of  the  bill,  (a)  whether  the  same  be 
an  original,  or  amended,  or  supplemental  bill,  omitting  the 
interrogating  part  thereof ;  and  such  bill,  as  against  such 

(a)  1812,  25tli  Feb. '  On  this  Jay  Lor  J  Lyiulliurst  said  lie  liad  been  requested  by 
the  other  judi^os  of  the  court  to  state,  that  the  eopy  of  the  bill  to  be  served  under 
tliis  order  was  to  be  either  an  office  copy  or  an  examinined  copy  of  the  bill  when 
filed,  such  copy  not  containing  the  interrogating  part. 


702  APPENDIX. 


party,  sliall  not  pray  a  subpoena  to  appear  and  ansTver,  but 
shall  pray  tliat  sucli  party,  upon  being  served  with  a  copy 
of  the  bill,  may  be  bound  by  all  the  proceedings  in  the 
cause.  But  this  order  is  not  to  prevent  the  plaintiff  from 
requiring  a  party  against  whom  no  account,  payment,  con- 
veyance, or  other  direct  relief  is  sought,  to  appear  to  and 
answer  the  bill,  or  from  prosecuting  the  suit  against  such 
party  in  the  ordinary  way,  if  he  shall  think  fit. 

Order  XXIV. 
That  Avhere  a  plaintiff  shall  serve  a  defendant  with  a 
copy  of  the  bill  under  the  twenty-thuxl  order,  he  shall 
cause  a  memorandum  of  such  service,  and  of  the  tune 
when  such  ser^dce  was  made,  to  be  entered  in  the  six 
clerks'  office,  first  obtaining  an  order  of  the  court  for 
leave  to  make  such  entry,  which  order  shall  l)c  obtained 
upon  motion  without  notice,  upon  the  court  being  satisfied 
of  a  copy  of  the  bill  ha\dng  been  so  served,  and  of  the 
time  when  the  service  was  made. 

Order  XXV. 
That  where  a  defendant  shall  have  been  served  with  a 
copy  of  the  bill  under  the  twenty-third  order,  and  a 
memorandum  of  such  service  shall  have  been  duly  entered, 
and  such  defendant  shall  not,  within  the  time  limited  by 
the  practice  of  the  court  for  that  purpose,  enter  an  appear- 
ance in  common  form,  or  a  special  appearance  under  the 
twenty-seventh  order ;  the  plaintiff  shall  l)e  at  liberty  to 
proceed  in  the  cause,  as  if  the  party  served  with  a  copy  of 
the  biU  were  not  a  party  thereto,  and  the  party  so  served 
shall  be  bound  by  all  the  proceedings  in  the  cause,  in  the 
same  manner  as  if  he  had  appeared  to  and  answered  the  biU. 


APPENDIX.  703 


OUDEII  XXVI. 
Tliut  wliere  Ji  ]»in"ty  sliall  be  served  w  itli  a  eopy  of  tlie 
bill  iiiKler  the  tweiit}'-tliird  order,  such  party  if  lie  desires 
the  suit  to  be  prosecuted  against  liiiiiself  iu  the  ordinary 
way,  shall  be  entitled  to  have  it  so  prosecuted;  and  in 
that  case  he  shall  enter  an  appearance  in  the  common 
form,  and  the  suit  shall  then  be  prosecuted  against  him  in 
the  ordinary  way;  but  the  costs  occasioned  there! )y  shall 
be  j)aid  by  the  J^arty  so  appearing,  unless  the  court  shall 
otherwise  direct. 

Order  XXVTL 
That  where  a  party  shall  be  served  with  a  copy  of  the 
bill  under  the  twenty-third  order,  and  shall  desire  to  be 
served  with  a  notice  of  the  proceedings  in  the  cause,  but 
not  otherwise  to  have  the  same  prosecuted  against  him- 
self, he  shall  be  at  liberty  to  enter  a  special  appearance 
under  the  following  form  ;  (that  is  to  say)  "  A.  B.  appears 
to  the  bill  for  the  purpose  of  Ijeing  served  with  notice  of 
all  proceedings  therein."  And  thereupon,  the  party  enter- 
ing such  appearance  shall  be  entitled  to  Ije  served  with 
notice  of  all  proceedings  in  the  cause,  and  to  aj)pear 
thereon.  But  the  costs  occasioned  thereby  shall  be  paid 
by  the  party  entering  such  apj^earance,  unless  the  court 
shall  otherwise  direct. 

Order  XXVIII. 

That  a  party  shall  not  be  at  lil)erty  to  enter  such  special 

appearance  under  the  tAvent}"-seventh  order,  after  the  time 

limited  by  the  practice  of  the  court  for  appearing  to  a  bill 

in  the  ordinary  course,  without  iii'st  obtaining  an  order  of 


704  APPENDIX. 


tlie  com*t  for  tliat  purpose ;  such  order  to  be  obtained  on 
notice  to  the  plaiutiii^  and  the  party  so  entering  such 
special  appearance,  shall  be  bound  by  all  the  proceedings 
in  the  cause,  prior  to  such  special  appearance  being  so 
entered. 

Order  XXIX. 
There  where  no  account,  payment,  conveyance,  or  other 
relief  is  sought  against  a  party,  T)ut  the  plaintiff  shall 
requu-e  such  party  to  appear  to  and  answer  the  l)ill,  the 
costs  occasioned  by  the  plaintiff  having  required  such 
party  so  to  appear  and  answer  the  bill,  and  the  costs  of  all 
proceedings  consequential  thereon,  shall  be  paid  by  the 
plaintiff,  unless  the  court  shall  otherwise  direct. 

Order  XXX. 
That  in  all  suits  concerning  real  estate  which  is  vested 
in  trustees  by  devise,  and  such  trustees  are  competent  to 
sell  and  give  discharges  for  the  proceeds  of  the  sale,  and 
for  the  rents  and  profits  of  the  estate,  such  trustees  shall 
represent  the  persons  beneficially  interested  in  tlie  estate 
or  the  proceeds,  or  the  rents  and  profits,  in  the  same 
manner,  and  to  the  same  extent,  as  the  executors  or 
admmistrators  in  suits  concerning  personal  estate  represent 
the  persons  beneficially  interested  in  such  personal  estate ; 
and  in  such  cases  it  shall  not  be  necessary  to  make  the 
persons  beneficially  interested  in  such  real  estate,  or  rents 
and  profits,  parties  to  the  suit;  but  the  court  may  upon 
consideration  of  the  matter  on  the  hearing,  if  it  shall  so 
think  fit,  order  such  persons  to  be  made  parties. 


APPENDIX.  705 


OllDEIl    XXXI. 

Tluit  in  suits  to  execute  the  trusts  of  a  will,  it  shall  not 
be  necessary  to  make  the  heir-at-law  a  ]):n-ty;  but  the 
plaintiff' shall  be  at  lil)erty  to  make  the  heir-at-law  a  party 
where  he  desires  to  have  the  will  established  against  him. 

Order  XXXII. 
That  in  all  cases  in  which  the  plaintiff  has  a  joint  and 
several  demand  against  several  persons,  either  as  principals 
or  sureties,  it  shall  not  be  necessary  to  bring  before  the 
court,  as  parties  to  a  suit  concerning  such  demand,  all  the 
persons  liable  thereto;  but  the  plaintiff  may  proceed 
against  one  or  more  of  the  persons  severally  lial^le. 

Order  XXXIII. 
That  where  a  demurrer  or  plea  to  the  whole  l)ill  shall 
be  overruled,  the  plaintiff,  if  he  does  not  requii'e  an  answer, 
shall  be  at  liberty  immediately  to  file  his  note  in  manner 
directed  ]>y  the  twenty-first  order,  and  with  the  same 
effect,  unless  the  court  shall,  upon  overruling  such  demurrer 
or  plea,  give  time  to  the  defendant  to  i)lead,  answer,  or 
demur;  and  in  such  case,  if  the  defendant  shall  file  no 
plea,  answer,  or  demurrer,  within  the  time  so  allowed  by 
the  court,  the  plaintiff,  if  he  does  not  require  an  answer, 
shall,  on  the  expu-ation  of  such  time,  be  at  liberty  to  file 
such  note. 

Order  XXXIV. 
That  where  the  defendant  shall  file  a  demurrer  to  the 
whole  bill,  the  demurrer  shall  be  held  sufticient,  and  the 
plaintiff'  be   held  to  have  submitted  thereto,  unless  the 
45 


706  APPENDIX. 


plaintiff  shall,  within  twelve  days  from  the  expiration  of 
the  time  allowed  to  the  defendant  for  filing  such  demurrer, 
cause  the  same  to  be  set  do^m  for  argument ;  and  where 
the  demurrer  is  to  part  of  the  hill,  the  demurrer  shall  be 
held  sufficient,  and  the  plaintiff  be  held  to  have  submitted 
thereto,  unless  the  plaintiff'  shall,  within  three  weeks  from 
the  expiration  of  the  time  allowed  for  filing  such  last  men- 
tioned demurrer,  cause  the  same  to  be  set  down  for 
argument. 

Order  XXXV. 
That  where  the  defendant  shall  file  a  plea  to  the  whole 
or  part  of  a  bill,  the  plea  shall  be  held  good  to  the  same 
extent,  and  for  the  same  purposes,  as  a  plea  allowed  upon 
argument,  unless  the  plaintiff  shall,  within  three  weeks 
from  the  expiration  of  the  time  allowed  for  filing  such 
plea,  cause  the  same  to  be  set  down  for  argument,  and  the 
plaintiff  shall  be  held  to  have  submitted  thereto. 

Order  XXXVI. 
That  no  demurrer  or  plea  shall  be  held  bad  and  over- 
ruled upon  argument,  only  because  such  demurrer  or  plea 
shall  not  cover  so  much  of  the  bill  as  it  might  by  law  have 
extended  to  it. 

Order  XXXVTI. 
That  no  demurrer  or  plea  shall  be  held  bad  and  over- 
ruled  upon   argument,  only  because  the   answer   of  the 
defendant  may  extend  to  some  part  of  the  same  matter  as 
may  be  covered  by  such  demurrer  or  plea. 


ArPENDIX.  707 


Order  XXXVIII. 
That  a  defendant  shall  be  at  liberty  by  answer  to 
decline  answering  any  interrogatory  or  ]):iit  of*  an  interro- 
gatory, from  answering  which  he  might  have  protected 
himself  l)y  demurrer ;  and  that  he  shall  be  at  lil)ei'ty  so  to 
decline,  notwithstanding  he  shall  answer  other  parts  of  the 
bill  from  which  he  might  have  protected  himself  by 
demurrer. 

Order  XXXIX. 
That  where  the  defendant  shall,  by  his  answer,  suggest 
that  the  bill  is  defective  for  want  of  parties,  the  plaintift' 
shall  be  at  lil^erty,  within  fourteen  days  after  answer  filed, 
to  set  down  the  cause  for  argument  upon  that  objection 
only  ;  and  the  purpose  for  which  the  same  is  so  set  dowTi 
shall  be  notified  by  an  entr}^,  to  be  made  in  the  registrar's 
book,  in  the  form  or  to  the  effect  following,  that  is  to 
say:  "Set  down  upon  the  defendant's  ol)jection  for  want 
of  parties ;"  and  that  where  the  j^laintiff  shall  not  so  set 
down  his  cause,  but  shall  proceed  therewith  to  a  hearing, 
notwithstanding  an  objection  for  want  of  parties  taken  by 
the  answer,  he  shall  not,  at  the  hearing  of  the  cause,  if  the 
defendant's  objection  shall  then  be  allowed,  be  entitled  as 
of  course,  to  an  oi'der  for  liberty  to  amend  his  l)ill  by 
adding  parties.  But  the  com't,  if  it  thinks  fit,  shall  be  at 
hberty  to  dismiss  the  bill. 

Order  XL. 

That  if  a  defendant  shall,  at  the  hearing  of  a  cause, 

ol)ject   that  a  suit  is  defective  for  want  of  parties,  not 

ha\^ng  by  plea  or  answer  taken  the  objection,  and  therein 

specified  by  name  or  description  the  parties  to  whom  the 


708  APPENDIX. 

objection  applies,  the  court,  if  it  sliall  tliink  fit,  shall  be 
at  liberty  to  make  a  decree  saving  the  rights  of  the  absent 
pai'ties. 

Order  XLT. 

That    where   a   defendant  in   equity   files  a   cross-bill 

ao-ainst  the  plaintiff  in  equity  for  discovery  only,  the  costs 

of  such  bill,  and  of  the  answer  thereto,  shall  be  in  the 

discretion  of  the  court  at  the  hearing  of  the  original  cause- 

Order  XLII. 
That  where  a  defendant  in  equity  files  a  cross-bill  for 
discovery  only  against  the  plaintiff  in  equity,  the  answer 
to  such  cross-bill  may  be  read  and  used  by  the  party  fihng 
such  cross-bill,  in  the  same  manner  and  under  the  same 
restrictions  as  the  answer  to  a  bill  praying  relief  may  now 
be  read  and  used. 

Order  XLIII. 
That  in  cases  in  which  any  exhibit  may  by  the  present 
practice  of  the  court  be  proved  viva  voce  at  the  hearing  of 
a  cause,  the  same  may  be  proved  by  the  afiSdavit  of  the 
witness  who  would  be  competent  to  prove  the  same  viva 
voce  at  the  hearing. 

Order  XLIV. 
That  where  a  defendant  makes  default  at  the  hearing  of 
a  cause,  the  decree  shall  be  absolute  in  the  first  instance, 
without  giving  the  defendant  a  day  to  show  cause,  and 
such  decree  shall  have  the  same  force  and  effect  as  if  the 
same  had  been  a  decree  nisi  in  the  first  instance,  and  after- 
wards made  absolute  in  default  of  cause  shown  by  the 
defendant. 


APPENDIX.  709 


OUDEII    XIjV. 

That  every  decree,  for  an  account  of  tlie  personal  estate 
of  a  testator  or  intestate,  shall  contain  a  direction  to  the 
master  to  inquire  and  state  to  the  couit  what  i)arts  (if  any) 
of  such  personal  estate  are  outstanding  or  undisposed  of, 
unless  the  court  shall  otherwise  direct. 

Order  XLVL 
That  a  creditor,  whose  debt  does  not  curry  interest,  who 
shall  come  in  and  establish  the  same  before  the  master, 
under  a  decree  or  order  in  a  suit,  shall  be  entitled  to  inter- 
est upon  his  debt,  at  the  rate  of  £4  per  cent,  from  the  date 
of  the  decree,  out  of  any  assets  which  may  remain  after 
satisfying  the  costs  of  the  suit,  the  debts  estabUshed,  and 
the  interest  of  such  debts  as  by  law  carry  interest. 

Order  XL VII. 

That  a  creditor,  who  has  come  in  and  estal)lis]ied  his  debt 

before  the  master  under  a  decree  or  order  in  a  suit,  shall 

be  entitled  to  the  costs  of  so  establishing  his  debt,  and  the 

same  shall  be  taxed  by  the  master,  and  added  to  the  debt. 

Order  XLVIII. 
That  in  the  reports  made  by  the  mtisters  of  the  court, 
no  part  of  any  state  of  flicts,  charge,  affidavit,  deposition, 
examination,  or  answer,  brought  in  or  used  before  tliem 
shall  be  stated  or  recited.  But  such  state  of  fiicts,  charge, 
affidavit,  deposition,  examination,  or  answer  shall  be  iden- 
tified, specified,  and  referred  to,  so  as  to  inform  the  court 
what  state  of  facts,  charge,  affidavit,  deposition,  examina- 
tion, or  answer  were  so  brought  in  or  used. 


710  APPENDIX. 


Order  XLIX. 
Tliat  it  sliall  not  be  necessary  in  any  bill  of  revivor,  or 
supplemental  bill,  to  set  forth  any  of  tlie  statements  in  the 
pleadings  in  the  original  suit,  unless  the  special  circum- 
stances of  the  case  may  require  it. 

Order  L. 
That  in  any  petition  of  rehearing  of  any  decree  or  order 
made  by  any  judge  of  the  court,  it  shall  not  be  necessary 
to  state  the  proceedings  anterior  to  the  decree  or  order 
appealed  from  or  sought  to  be  reheard. 

Order  LI. 

That  the  foregoing  orders  shall  take  effect  as  to  all  suits, 

whether  now  depending,  or  hereafter  commenced,  on  the 

last  day  of  Michaelmas  term,  one  thousand  eight  hundred 

and  forty-one. 

cotteniiam,  c. 

Langdale,  M.  R. 


INDEX 

TO    THE 

ORDERS  OF  THE  HIGH  COURT  OF  CHANCERY, 

IN  ENGLAND, 

IN    FORCE    IN    1842. 


***  The  figures  refer  to  the  pages  of  the  vohimc. 

Pagb. 

Abatement  : 

Distinction  between  the  ahatemcnt  of  a  suit  and  the  bill 

becoming  defective  for  want  of  proper  parties G20 

Vide  tit.  Dismissal  of  hill  for  leant  of  prosecution.     Revivor; 
subpoena  to  hear  judgment. 

Accounts  : 

Mode  of  rendering  in  master's  office G44 

Mode  of  keeping  accounts  there 644 

Advancing  cause  : 

The  court  will  advance  a  cause  after  adding  parties,  when 
a  cause  has  stood  over  for  that  purpose 627 

Affidavits  : 

Order  respecting  use  of  affidavits  before  the  master 633 

All  affidavits  previously  read  in  court  may  be  used  before 
the  master 645 


712  INDEX. 

Paoe. 

Affidavits  (continued): 

No  affidavits  in  reply  before  the  master  to  be  read,  except 
as  to  new  matter  arising  out  of  the  affidavits  in  answer  645 

Not  to  be  recited  in  master's  report 709 

No  objection  to  affidavits  having  been  used  before  the  mas- 
ter can  be  taken  on  the  report,  unless  the  objection  was 
originally  taken  before  the  master 633 

Amendment  of  bill,  and  order  for  : 

Orders  governing  the  present  practice 662 

What  amendments  are  considered  as  not  within  those  or- 
ders      609,  615 

Mode  of  obtaining  orders  to  amend  before  answer,  and 
other  orders  to  amend  as  of  course 610 

Any  number  of  amendments  hefore  answer  will  be  allowed 
as  of  course 610,  611 

As  to  viore  than  one  amendment  after  such  answer  has  been 
filed,  and  when  such  amendment,  and  of  what  nature, 
may  be  made  as  of  course 609,  615 

What  applications  to  amend  are  of  course 609,  610 

What  are  special  applications 611,  614 

When  and  what  amendments  will  be  allowed  after  replica- 
tion and  without  withdrawing  such  replication 614,  615 

How  order  to  amend  withdrawing  replication  is  to  be  ob- 
tained    G14,  662 

Under  what  circumstances  a  still  further  amendment  will 
be  allowed  as  of  course 610 

Within  what  time  the  bill  should  be  amended  after  the 
date  of  the  order 613 

Form  of  the  affidavit  upon  a  special  application  for  leave  to 
amend  bill 609 

Effect  of  an  order  to  amend,  as  against  a  motion  to  dismiss 

for  want  of  prosecution 617 

What  order  to  amend  will  not  defeat  such  motion 617 

But  the  plaintiff"  must  pay  the  defendant's  costs  of  the  mo- 
tion      617 


INDEX.  713 

Pagb. 

Amendment  of  bill,  and  ordkh  kok  (continued)  : 

The  defendant's  costs   of   aun-uduiciit  of  tlie   liill  by  tlic 

plaiiitifl"  provided  for 025 

What  amendments  the  court  will  permit  on  the  hearing,  or 

on  appeal 012 

Mode  of  compelling  the  plaintiff  to  amend  when  the  cause 

has  stood  over  fctr  that  purpose    GLO,  G18 

Restrictions  on  the  plaintiff  in  amending  by  adding  parties 

pursuant  to  leave  given  on  the  hearing G13 

Amendment  of  bill  : 

Under  what  circumstances  the  court  will  order  the  resto- 
ration of  matter  struck  out  of  a  bill  by  amendment,  in 
order  to  give  the  defendant  his  costs  as  to  such  matter. .    G15 

Practice  as  to  amendment  in  injunction  causes  : 
Restrictions  on  the  power  of  amending  in  common  injunc- 
tion cases Gil 

Mode  of  applying  to  amend  in  common  injunction  cases, 

without  prejudice  to  the  injunction 612,  GS6 

Such  application  must  be  made  to  the  court G12 

Circumstances  necessary  to  enable  the  plaintifi"  to  obtain 

leave  to  amend  in  such  cases G12 

Vide  tit.  Injunction. 

Practice  as  to  amendment  as  connected  with  exceptions 
for  insufficiency CIO,  Gil 

Of  hills  of  discovery  : 
By  adding  prayer  for  relief Gil 

Answf.r  : 

Mode  of  taking  in  the  country GoG 

Attachment  for  want  of GOG 

Sequestration  for  want  of GOG 

Of  defendant,  when  need  not  be  made GOG 

Of  defendant,  when  impertinent GOS 

Suggesting  want  of  parties,  proceedings  on 707 

To  cross-bill,  how  read  and  used 708 

Vide  tit.  Costs,  Exceptions. 


714  INDEX. 

Pa  OB. 

Answer,  further  : 

When  a  defendant  may  file  a  further  answer,  pending  ex- 
ceptions    606 

Answering,  time  for  : 

Orders  governing  the  present  practice 656,  659,  685 

No  order  for  time  now  requisite,  except  where  time  is  re- 
quired for  that  purpose,  beyond  the  time  allowed  by  the 
orders  of  1833,  and  corresponding  with  the  third  order 
under  the  old  practice 657 

Extent  of  time  allowed  for  answering  without  any  order. 

In  town  causes  : 

An  original  hill 657 

An  amended  bill,  when  an  answer  is  required  to  the  amend- 
ments     657 

A  bill  of  revivor,  to  which  an  answer  is  required 657 

A  supplemental  bill 657 

In  country  causes  : 

An  original  bill 657 

An  amended  bill,  where  an  answer  is  required  to  it 657 

A  Inll  of  revivor,  to  Avhich  an  answer  is  required 657 

A  supplemental  bill 657 

What  time  shall  he  dediicted  from  the  above  mentioned  pe- 
riods, when  a  defendant  is  in  contempt  to  an  attachment 

for  want  of  ai^pearance C58 

What  further  time  a  defendant  shall  be  entitled  to  when  a 

plaintiff  is  ordered  to  give  security  for  costs 659 

What  time  a  defendant  is  entitled  to  take,  to  put  in  an  an- 
swer to  amended  bill,  although  the  order  does  not  require  a 

further  answer 659 

How  he  may  obtain  further  time  for  that  purpose 659 

Upon  exceptions  to  a  first  answer,  time  allowed  for  putting 

in  a  further  answer. 
Where  the  defendant  submits  to  exceptions  hrforc  order  of 

reference   661 

Where  he  so  submits  after  an  order  of  reference 661 


INDEX.  715 

Paob. 

Answering,  time  for  (continued): 

Whore  the  master  reports  the  answer  to  be  insufficient. .  .    G05 
A  defendant,  after  he  is  in  contempt,  can  not  obtain  further 
time  to  answer 605 

Appearance  : 

Time  within  which  it  should  be  entered  upon  an  original 

or  supplemental  bill,  or  bill  of  revivor 603 

Process  to  enfoice 695 

When  plaintiff"  may  enter  defendant's 695 

Assets  : 

Power  of  master  to  certify  the  state  of,  on  making  a  sepa- 
rate report 646 

Assistance  : 

Writ  of 697 

Attachment  : 

For  want  of  answer 696 

Bills : 

How  marked 673 

Cases  for  the  opinion  of  counsel  : 

The  general  rule  now  is,  that  their  production  can  not  be 
compelled G40,  643 

Certificate  : 

Any  person  entitled  to  a  certificate  from  the  six  clerks'  office, 
specifying  the  dates  and  nature  of  the  proceedings  in 

the  cause 630,  674 

Official  fee  thereupon 630 

Ofviastcr,  of  state  of  proceedings  in  his  office,  is  due  to 
any  person 635 

Clerks  in  court : 

Not  entitled  to  fees  for  attendance  in  court,  except  where 

such  attendance  is  necessary 628 

When  personally  liable  to  pay  costs  for  negligence 634 

Vide  tit.  Solicitor. 


716  INDEX. 

Paob. 

Commission  : 

To  examine  witnesses  may  now  be  executed  in  term  time  621 
Within  what  time  the  plaintiff  &\\on\d  obtain  an  order  for, 

in  case  he  requires  it 02 1 

AVhen  commission  to  be  returnable 621 

A\nien  the  defendant  may  obtain  order  for,  and  issue  a 
commission  to  examine  witnesses,  and  have  the  carriage 
thereof 621 

Confirmation  of  master's  report: 

Order  nisi  for,  obtainable  on  petition,  as  7vc?l  as-  hy  viotion  623 
Service  on  the  clerh  in  couit  of  a  party,  good  service 623 

Construction  : 

General  construction  of  orders 363 

Contempt : 

When  a  defendant  in  contempt  for  want  of  answer  obtains, 
on  putting  in  his  answer,  his  discharge  under  the  com- 
mon oi'der,  the  acceptance  of  costs  by  the  plaintiff  shall 
not  prejudice  his  right,  in  case  the  answer  should  be 
insufficient,  to  take  up  the  process  at  the  point  to  which 
he  had  before  proceeded 623 

Vide  tit.  Discharge. 

Conveyance : 

When  directed  to  be  settled  by  the  muster,  mode  of  pro- 
ceeding prescribed,  in  order  to  avoid  the  costs  of  its 
beinjr  so  settled,  and  in  a  certain  event  to  throw  those 

o 

costs  on  the  party  vexatiously  or  impi'operly  objecting 
to  the  form  which  the  other  side  may  have  agreed  to, 
and  the  master  may  adopt 648 

Costs  : 

Of  insufficiency  of  answer  provided  for 624,  661 

Upon  successful  or  unsuccessful  exceptions  to  an  answer 

for  insvfficiency 624,  661 

Payable  on  report  of  the  insufficiency  of  a  tliird  answer. .    606 


INDEX.  717 

Pace. 

Costs  (continued) : 

Oi separate  answers  in  master's  discretion G24 

Upon  reference  for  scandal  or  impertinence  in  proceedings 

hvfore  the  court 662 

Upon  applications  by  way  of  motion  to  the  master GCrj 

Mode  of  recovery 6G3 

On  alloivancc  of  a  plea  or  demurrer,  what  costs  payable  . .  025 

Costs  payable  after  a  plea  or  demurrer  set  down 626 

On  overruling  a  plea,  or  disallowance  of  a  demurrer,  what 

costs  payable 626 

On   overruling  the   demurrer  on  record,  and  allowing   a 

demurrer  ore  tenus 626 

Costs  payable  by  a  witness  overruling  his  demurrer 626 

On  amending  bill 625 

Upon  a  motion  to  dismiss  for  want  of  prosecution 616 

Of  defendants,  when  cause  struck  out  for  want  of  parties 

or  other  defect  on  the  plaintiff's  part 626 

Process  to  collect 689 

When  defendant  liable  to,  in  suits  where  no  relief  is  sought  702 

When  plaintiff  liable  to,  in  snits  where  no  relief  is  sought  702 

Of  cross-bill  for  discovery 708 

To  creditors,  before  a  master 709 

Of  separate  report  : 
In  the  discretion  of  the  court 646 

Defendant's  costs  of  bill  of  discovery  : 

As  to  the  mode  and  time  of  obtaining  the  same 617 

After  abatement 620 

Ultra  deposit  : 

On  petition  of  appeal  or  rehearing 630 

On  exceptions  to  master's  report 629 

On  proceedings  in  master's  office  upon  special  applications  663 

Remedy  for  recovery  of 663 

Liability  of  solicitor  or  clerk  in  cowtX.  personally  to  pay  in 

case  of  neglect  or  misbehavior 634 

Vide  tit.  Contempt,  Deposit. 


718  INDEX. 

Pagb. 

Costs  (continued): 

In  viastcr^s  office: 
Vide  tit.  Master. 

Security  for  : 

In  what  cases  the  court  will  order  a  sole  plaintiff  out  of 
the  jurisdiction  to  give 629 

Of  the  day : 

Amount  of,  on  cause  standing  over 627 

Allowed  to  defendant  on  the  cause  being  struck  out  of  the 
paper 626 

In  proceedings  before  master,  upon  reviewing  proceedings  634 
Upon  failure  of  proceedings  by  the  non-attendance  of  par- 
ties and  mode  of  recovering 634 

Taxation  of: 
Mode  of  proceeding  when  the  master  is  directed  to  tax 
costs,  in  order  to  throw  the  costs  of  taxation  on  the  party- 
refusing  a  tender,  when  the  master  adopts  in  the  taxation 
the  amount  of  such  tender,  or  a  less  sum 648 

Counsel : 

Costs  of  two  counsel,  when  both  are  selected  from  the 
outer  bar,  now  allowed 626 

Signature  of,  necessary  to  exceptions  for  scandal  or  imper- 
tinence in  proceedings  before  the  court 606 

Courts : 

For  orders  regulating  the  courts  in  which  causes  are  to  be 
heard,  vide  tit.  Judge. 

Creditor  : 

"When  he  may  obtain  the  conduct  of  the  suit  in  the  master's 
office  upon  the  plaintiff's  delay 635 

Liability  of  creditor,  or  any  other  person  coming  in  before 
the  master,  to  be  examined  by  him  upon  interrogatories 
or  viva  voce 647 

When  entitled  to  costs 709 


INDEX.  719 

Vxaa. 

Deckers : 

How  enforced G95 

What  writs  to  cnlbrcc,  abolislied G9/3 

Not  obeyed,  proceedings  on G97 

To  specify  lime  within  which  to  be  obeyed    G97 

Wlien  made  absolute  at  the  hearing    708 

In  administrator's  suits 709 

Vide  tit.  Entry  of  decrees  and  orders,  errors. 

De  die  in  diem  : 

Master  may  proceed  in  all  matters  in  his  discretion 635 

Dedimus  : 

Should  be  sj)ccial,  to  enable  a  defendant  to  put  in  a  demur- 
rer to  part,  and  an  answer  to  the  remainder  of  the  bill    G57 
To  take  answer,  may  now  be  obtained  without  order  ....   656 
When  and  how  a  defendant  residing  not  less  ih^njvur  miles 
from  London,  may  sue  out  such  dedimus 656 

Defendant  : 

Need  not  answer,  unless  specially  interrogated 698 

To  plead,  &c.,  in  same  time  in  country  as  in  city  causes. .   700 

Not  pleading,  effect  of 700 

How  served  with  process  when  no  relief  is  sought 701 

Not  appearing  in  such  case,  eftcct  of 702 

When  may  compel  proceedings  against  him  as  in  ordinary 

way    703 

Special  appearance  in  such  case 703 

Special  appearance  not  after  usual  time 703 

May  by  answer  protect  himself  from  discovery 707 

Default  at  hearing,  effect  of 708 

Delay  in  prosecuting  suit  : 

When  and  how,  upon  such  delay,  a  party,  or  am/  jyerson 
interested,  may  apply  to  the  court  for  the  purpose  of  ex- 
pediting the  cause G31,  635 

Vide  tit.  Expediting  Proceedings. 


720  INDEX. 

Pagb. 

Demurrer  : 

Time  allowed  to  a  clcfendant  to  demur  alone  to  an  original, 
amended  or  supplemental  bill,  or  bill  of  revivor,  except 
in  common  injunction  causes,  to  stay  proceedings  at  law, 

twelve  days 657 

Orders  regulating  the  court  in  which  to  be  set  down    ....   676 
When  the  court  will  let  in  the  defendant  to  demur  general- 
ly, after  the  expiration  of  the  time  allowed  by  its  general 

orders 658 

Time  allowed  to  a  defendant  to  demur  alone  in  injunction 

causes,  to  stay  proceedings  at  law,  eight  days    657 

Overruled,  effect  of 705 

When  to  be  held  sufficient    705 

When  not  to  be  disallowed 706 

Vide  tit.  Costs,  revivor. 

Deposit  : 

Amount  of,  upon  exceptions  to  a  master'' s  report 629 

Power  and  mode  of  the  court  in  dealing  with 629 

Amount  of,  upon  petition  of  appeal  or  rehearing 630 

Power  and  mode  of  dealing  with,  by  the  court 630 

Vide  tit.  Costs,  ultra  deposit. 

Devisees  : 

When  to  represent  their  cestui  que  trusts 704 

Discharge  : 

Of  a  defendant  in  custody  for  want  of  answer,  when  he  is 
entitled  to   605 

Discovery,  biij.  of:  ^ 

Vide  tit.  Amendment,  Costs,  Dismissal  of  bill. 

Dismissal  of  rill  for  want  of  prosecution  : 

Order  now  regulating  the  practice  as  to  the  time  within, 
and  the  circumstances  under,  which  the  defendant  may 

make  this  motion 664 

Vide  tit.  Time. 


ENGLISH  ORDERS  IN  FORCE  1842.  721 


Paoi. 

Dismissal  of  bill  for  want  of  proskcution  (continued): 

Cases  in  which  this  motion  is  irregular  with  regard  lo  the 
nature  of  the  svlt 616,  621 

Time  at  whicli  this  motion  may  be  regularly  made (jlo 

When  the  court  will  refuse  to  make  any  order  on  the  mo- 
tion     616,  618 

When  the  court  will  direct  the  motion  to  stand  over,  and  by 
the  same  order  give  the  pi aintitl' liberty  to  perfect  his  bill  61S 

Form  of  order  on  the  plaintiff's  undertaking  to  speed  the 
cause 618 

Times  within  which  the  various  proceedings  therein  men- 
tioned must  be  taken 618 

Observations  on  the  effect  of  such  undertaking 618 

Effect  of  an  order  t/)  amend,  as  against  a  motion  to  dismiss 
for  want  of  prosecution 617 

Effect  of  a  replication  after  notice  of  motion  to  dismiss,  and 
before  the  motion  is  made 617 

A  motion  to  dismiss  for  want  of  prosecution  cannot  now 
be  made,  until  the  time  allowed  for  amending  as  to  such 
defendant  has  expired   664 

Vide  tit.  Amendment. 

A  motion  to  dismiss  for  want  of  prosecution  pending  an 
ahatement  of  the  suit,  irregular 618 

But  such  an  order  to  dismiss  is  not  a  mere  nullity 618 

Cases  in  which  such  a  motion  to  dismiss  may  be  regularly 
made,  notwithstanding  the  hanliruptcy  or  insolvency  of  a 
party  to  the  suit 620 

Cases  in  which  it  cannot  be  made  after  the  bankruptcy  or 
insolvency  of  a  sole  plaintiff'   620 

The  proper  course  of  proceeding  when  the  common  motion 
to  dismiss  for  want  of  prosecution  would  be  irregidar, 
by  reason  of  abatement  or  otherwise 619 

Vide  tit.  Revivor. 

In  injunction  cases  : 

Practice  as  to 619 

Vide  tit.  Stay  of  j^rocccdings. 
46 


722  INDEX. 

Paob. 

Election : 

Wlien  plaintiff  may  be  compelled  to  take,  if  bringing  two 
suits  for  same  matter 685 

Elegit  : 

Vide  tit.  Writs. 

Entry  of  decrees  and  orders: 

By  whom  to  be  entered 668,  669 

Time  within  which  the  officer  of  the  court  is  bound  to  make 
such  entry 668,  669 

Errors  in  decrees  and  decretal  orders : 

When  they  may  be  corrected  without  a  rehearing    631 

When  they  cannot  be  so  corrected 631 

In  other  orders : 

When  they  may,  and  cannot,  be  corrected 631 

Evidence  before  the  master  : 

No  further  aid  to  be  received  after  issuing  the  warrant  on 
jpreparing  his  report 645 

Examination  before  the  master  : 

Mode  of  objecting  to,  on  the  ground  of  insufficiency    647 

Vide  tit.  Viva  voce. 

Examiner  : 

Same  examiner  who  takes  the  examination  in  chief  of  a 
witness,  to  be  at  liberty  to  take  his  cross-examination  . .   624 

Exceptions  for  insufficiency  of  answer  : 

Time  within  which  they  should  be  filed 604 

Time  within  which  order  of  reference  should  be  obtained 

and  served  [except  in  injunction  causes) 604 

In  common  injunction  causes  such  order  may  be  obtained 
immediately  by  the  plaintiff,  where  no  injunction  has 
been  obtained  before  answer 604 


ENGLISH  ORDERS  IN  FORCE  1842.  723 

Paob. 

Exceptions  for  insufficiency  of  answer  (continued): 
Contra,  when  an  injunclion  has  been  obtained  before  an- 
swer      G04 

Time  within  which  the  muster's  report  should  be  obtained  G08 

Power  of  the  master  to  enlarge  such  time 608 

Time  within  which  a  second  or  third  answer  shouhl  be 

referred  on  the  old  exceptions GO 4 

Mode  of  referring  such  answer,  and  form  of  the  order  . .  .   G04 
Proceedings  consequential  upon  a  third  answer  being  re- 
ported insufficient    GOG 

Time  from  which  answer  shall  be  deemed  insufficient  upon 

exceptions  submitted  to  or  allowed GOG 

Power  of  the  master  in  dealing  with  exceptions  for  in- 
sufficiency or  impertinence,  to  take  into  consideration 
the  relevancy  or  materiality  of  the  question G47 

Exceptions  to  master's  report  : 

Vide  tit.  Costs  ;    Ultra  Dejwsit,  and  Deposit. 

When  a  general  excejjtion  was  held  by  the  vice  chancellor, 
to  be  capable  of  being  allowed  in  part,  and  disallowed 
in  part '. G29 

Exhibits  : 

A  party  not  compellable  to  produce  before  the  hearing  . .   G43 
Vide  lit.  Amendmcftt  ;  Answering,  time  for  ;   Costs;  Exa- 
mination  before   master  ;     Impertinence  ;     Instfftcicncy  ; 
Scandal. 
When  may  be  proved  by  affidavit 708 

Ex    PARTE  : 

When  proceedings  may  be  so  taken  before  the  master  . . .   G34 

Expediting  proceedings  : 

Powers  of  master  in  regard  to,  and  to  commit  the  prosecu- 
tion of  the  cause  to  a  party  to  the  suit,  or  any  other  person 
who  has  come  in  hefore  him  and  established  his  claim 635 

Vide  tit.  Delay  in  j^t'osecuting  suit. 


724  INDEX. 

Page. 

Fees  of  masters  and  their  clerks  : 
Vide  tit.  Subpama. 
Of  solicitors : 

Vide  tit.  Subpcrna. 

Of  their  attendance  upon  warrants 636 

Upon  their  certifying  to  the  registrar  a  cause  to  be  set 

down  in  two  courts 628 

Upon  their  certifying  to    the  registrar  that    a  cause   has 

abated  or  been  compromised . . : 628 

Power  of  master  to  disallow  for  neglect 636 

Fieri  facias  : 
See    Writs. 

Foreclosure  suits : 

When  may  be  advanced  for  hearing 687 

Further  directions  : 

Orders  regulating  the  court  before  which  causes  to  be  set 
down  for  further  directions 678 

Hearing  cause  : 

Vide  tit.  Setting  dotim  cause  for  hearing.  Pro  confesso,  Ad- 
vancing causes,  Costs  of  the  day. 

Heir-at-law  : 

Generally  not  entitled  to  an  inspection  o?  all  the  title  deeds  643 
When  not  a  necessary  party 705 

Husband  and  wife  : 

Vide  tit.  Baron  and  feme.  Separate  projycrty. 

Impertinence : 

In  j)roccedings  before  the  court : 

Mode  of  excepting  for    scandal  or  impertinence  in  pro- 
ceedings before  the  court 608 

As  to  form  of 608 

What  is  impertinence 607 


ENGLISH  ORDERS  IN  FORCE  1842.  725 

Pa  OB. 

Impertinence  (continued) : 

Time  of  excepting  for  scandal  or  impertinence  not  governed 
by  the  order  as  to  exceptions  for  insufficiency COS 

Time  within  which  order  of  reference  for  scandal  or  im- 
pertinence in  proceedings  before  the  court  should  be 
obtained  after  the  delivery  of  exceptions 607 

Time  within  which  the  master's  report  should  be  obtained 
"after  the  date  of  the  order  of  reference G08 

Mode  of  obtaining  the  enlargement  of  such  time G08 

An  exception  for  impertinence  fails  if  any  part  of  the  pas- 
sage included  in  it  be  not  impertinent 607 

Interrogatories  and  depositions  will  not  be  referred  for 
impertinence  alone  without  scandal 607 

Circumstances  under  which  an  order  of  reference  for  im- 
pertinence can,  and  can  not  be  regularly  obtained.   607^  647 

As  to  form  of  order  of  reference 662 

Costs  upon  report  of  scandal  or  impertinence,  how  to  be 
obtained,  taxed  and  recovered 662 

Matter  reported  scandalous  or  impertinent  not  to  be  ex- 
punged or  costs  taxed  until  the  expiration  of  four  days 
from  the  filing  of  the  master's  report 662 

A  party  may,  however,  take  exceptions  to  the  report  at  any 
time  before  such  matter  is  actually  expunged 662 

No  reference  for  impertinence  after  reference  for  insuffi- 
ciency     608 

Nor  for   answer   after  replication   or    an   undertaking  to 

speed  the  cause 607 

In  proceedings  before  the  master  : 

Mode  of  objecting  to  for  scandal  or  impertinence,  and  man- 
ner of  proceeding   647,  662 

Indulgence : 

The  court  will  under  circumstances  relax  its  general  orders  363 
Vide  tit.  Demurrer, 

Injunction  to  stay  proceedings  at  law. 

At  what  time  the  plaintiff  is  entitled  to  move  for,  as  of 
course,  before  answer 657,  685 


726  INDEX. 

Paob. 

Injunction  to  stay  proceedings  at  law  (continued): 

Form  of  order  for 657,  685 

A  plaintiff  is  entitled  to  the  co?/wion  injunction  on  the 
master  rcpoi'ting-  the  bill  not  to  he  impertinent,  on  the 
defendant's  reference  for  imjiertinence 607 

Injunction,  dissolving  : 

Order  nisi  for,  may  be  obtained  on  petition,  as  well  as  by 

motion  623 

Such  order  to  be  served  at  least  two  clear  days  before  the 

day  for  showing  cause 623 

Vide  tit.  Dismissal  Jbr  want  of  prosecution,  Vrochcin  amy, 

Securitij  for  costs. 

Insufficiency  : 

Master  in  deciding  on  the  sufficiency  or  insufficiency  of  an 
answer  or  examination,  may  now  take  into  considera- 
tion the  relevancy  or  materiality  of  the  subject 647 

Vide  tit.  Exceptions,  Examination  Infore  master. 

Interest : 

When  and  from  what  time  allowed 709 

Interrogatory : 

When  parties  may  be  examined  upon,  in  cases  of  account 

before  the  master 644 

Last,  altered  form  of 671 

Not  necessary  to  be  used 671 

New  form  of 699 

Interrogatories  in  the  master's  office: 

Parties  at  liberty  lo  prefer 644 

To  be  numbered 699 

To  be  answered,  to  be  specified  in  note  at  foot  of  bill  ....  699 

Such  note  a  part  of  the  bill 699 

Lien  of  solicitor  : 

Vide  tit.  Production  of  documents. 


ENGLISH  ORDERS  IN  FORCE  1842.  727 

Paob. 

Lunatic : 

Vide  lit.  'Protector. 

Master  : 

Duties  of,  prescribed G32-G40,  G67 

Applications  to,  by  way  of  motion,  mode  of  making  pre- 
scribed     G62 

Powers  of  master  upon G62 

ct  scq. 

Mode  of  drawing  up  and  entering  orders  of  the  master —   GG3 

Costs  upon,  master's  power  as  to 663 

Mode  of  recovering 663 

Powers  of,  to  expedite  and  continue  proceedings 633-63G 

And  to   punish   delay  or  negligence  of  parties  or  their 

solicitors 6.''3— 635 

Power  of,  to  award  costs 633-636,  646,  663 

Power  of,  to  require  parties  to  be  represented  by  another 

solicitor 649 

Power  of,  to  take  preliminary  accounts 687 

Vide  tit.  Assets,  Certificate,  Costs,  Fees,  Expediting  pro- 
ceedings, Orders,  Reviewing  proceedings  and  wairant 
before  master. 

Master  of  reports  and  entries: 

Duties  of 669 

Master  in  rotation  : 

Mode  of  obtaining  the  name  of,  and   practice  in  regard  to  660 
Vide  tit.  Master  of  the  vacation. 

Master  of  the  vacation: 

WHien  proceedings  may  be  taken  before  him 665 

Masters  extraordinary  : 

Limit  of  their  jurisdiction 671 

Mistakes  : 

Vide  tit.  Errors. 


728  INDEX. 

Page. 

Money : 

Vide  tit.  Orders. 

Mortgagee  : 

Not  generally  bound  to  produce  deeds 642 

Motions  of  course  : 

Cannot  be  opposed,  tliough  notice  has  been  given 363 

Vide  tit.  Orders  of  course. 

New  trial  : 

Application  for,  to  be  first  made  to  the  same  jurisdiction 
which  directed  the  issue    632 

Notice  of  motion  : 

To  be  served  at  least  two  clear  days  before  it  is  to  be  made  623 

Notices  : 

Where  to  be  served 694 

Office  copies  : 

Mode  of  making 628 

Of  reports  and  exceptions  to  reports,  when  to  be  ready  . .   670 

Offices  of  the  court  : 

Hours  of  attendance  at,  regulated   672 

Orders : 

Forms  of,  prescribed Q&5 

On  fet'ilions  of  course  to  the  master  of  the  rolls,  present 
mode  of  drawing  up  and  entering    668 

Fees  of  secretary  of  the  rolls  upon 669 

Vide  tit.  Master. 

Where  to  be  served   694 

How  to  be  enforced  against  persons  not  parties 698 

Of  1841,  when  to  take  effect    710 

By  masters,  vide  tit.  Master. 

For  transfer  of  stock,  or  payment  or  laying  out  money, 
form  of,  regulated 667 


ENGLISH  ORDERS  IN  FORCE  1842.  729 


Paob. 

Drawin<;  up  : 

It  is  the  duty  of  the  party  obtaining  an  order,  to  draw  it 
up  correctly    3G3 

Order  to  amend  rill  : 

Vide  tit.  Amendment  of  hill. 

Orders  of  course : 

Not  within  the  operation  of  the  orders  of  the  5tli  May,  re- 
gulating the  mode  of  hearing  causes,  and  making  special 

application 678,  GSO 

Mode  of  drawing  up,  &c.,  at  the  rolls 668 

Fees  upon 669 

Motion  to  discharge 688 

To  amend  : 
Still  obtained  by  motion  of  course,  of  the  rolls 681 

Parties : 

"When  one  or  more  joint  ones  may  be  sued  alone 705 

AVant  of,  suggested  by  answer 707 

Want  of,  when  not  so  suggested 707 

Petition  : 

Must  be  filed  after  order  j^ronounccd  or  made  upon  it.  .  .    665 
Orders  regulating  the  court  to  which  sj>ccial  petitions  are 

to  be  presented,  and  by  which  to  be  heard 678 

For  rehearing,  what  need  not  state 710 

Service  of: 

Two  clear  days  at  least  before  it  is  to  be  heard 623 

Plea  : 

Time  allowed  to  a  defendant  to  plead  to  original  or  sup- 
plemental bill,  or  bill  of  revivor  to  which  an  answer  is 
required,  or  to  an  amended  bill  to  which  an  answer  is 

recjuired,  in  town  causes 657 

Time  allowed,  &c.,  in  country  causes 700 

Orders  regulating  the  setting  down  of 678 


730  INDEX. 

Paob. 

Plea  (continued) : 

Overruled,  effect  of 705 

AVhen  to  be  held  good 705 

When  not  to  be  disallowed 706 

Process  : 

To  enforce  decrees 695 

Prochein  amy  : 

Course  of  proceeding  on  death  of 620 

Pro  confesso  : 

Vide  tit.  Advancing  cause. 

Produce  witnesses  : 

Vide  tit.  Rules  to  j'roduce  witnesses,  Sfc.  ;    Witness. 

Production  of  documents  : 

Order  regulating  this  before  the  master 636 

As  to  the  master's  discretionary  power  under  this  order. .   636 
et  seq. 

As  to  enforcing  production  of  documents  adinitted  hy  the  answer 
to  he  in  the  defendants  possession  or  power  : 

General  rule  of  the  court  is  to  compel  production 636 

In  what  cases,  and  as  to  what  particular  documents  the 
court  will  order  the  production 636 

In  what  cases,  and  as  to  what  particular  documents  the 
court  will  refuse  to  compel  production 640 

The  solicitor's  lien  will  not  protect  his  client  from  being 
ordered  to  produce  documents  in  the  solicitor's  posses- 
sion on  the  motion  of  the  other  party 638 

A  plaintiff  is  not  compellable  to  produce  documents  on 
motion  of  a  defendant,  even  on  his  affidavit  that  an  in- 
spection of  ihem  is  necessary  to  enable  him  to  answer  the 
bill    643 

When  the  documents  are  in  a  foreign  country 639 

As  to  production  at  law  in  cases  of  discovery  here. .   638,  644 


ENGLISH  ORDERS  IN  FORCE  1842.  731 

Publication,  enlarc;ing  or  staying  : 

Generally  by  special  application 662 

Vide  tit.  Rules  to  produce  witnesses,  Sfc. 

Mode  of  applying  for 622 

Receiver  : 

His  accounts  may  now  be  delivered  and  his  balances  paid 

at  such  times  as  the  master  may  direct 644 

Form  of  order  appointing 644 

Powers  of  master  enlarged 644 

Mode  of  acting  under  order 644 

May  now  let  with  the  approbation  of  the  master  without  a 

petition  previously  presented  for  a  reference  as  to  such 

letting 644 

But  the  master's  report  approving  of  such  letting  must  be 

confirmed  by  petition 644 

Recitals  : 

In  decrees  and  orders,  vide  tit.   Orders  of  the  court. 

Rehearing : 

Vid  tit.   Costs,  Deposits. 

Registrars  : 

Duties  of,  prescribed 664 

Report,  master's  : 

Should  be  actually  filed  before   any  proceeding  is  taken 

upon  it 605 

Upon  exceptions  to  a  first  answer  for  insufficiency,  within 

what  time  to  be  obtained 608 

Mode  of  obtaining  enlargement  of  such  time 60S 

Time  within  which  report  oi  scandal  ov  impertinence  should 

be  obtained  after  order  of  reference 60S 

Mode  of  obtaining  an  enlargement  of  such  time 60S 

Report,  separate  : 

May  be  now  made  without  an  order 646 


732  INDEX. 

Page. 

Report  separate  (continued) : 

Costs  of  indiscretion  of  the  court 646 

A-^ide  tit.   Confirmation  of  report. 

Restoring  bill  after  dismissal  for  want  of  prosecu- 
tion : 
A'ide  tit.  Dismissal  for  want  of  Prosecution. 

Reviewing  proceedings  before  master  : 

Practice  as  to 034,  646 

Costs  of 634,  646 

Revivor  : 

At  what  time,  and  under  what  circumstances,  and  how  the 
plaintiff"  may  apply  for  the  common  order  to  revive  he- 
fore  appearance 655 

After  appearance 657 

Defendant  can  not  show  cause  against  reviving  suit  other- 
wise than  by  plea  or  demurrer 658 

Bills  of^  what  need  not  state 710 

Sale  of  estates  in  master's  office  : 

Powers  of  master  as  to 648 

Scandal : 

Vide  tit.  Impertinence. 

Separate  property  op  a  feme  covert  : 

Form  of  a  bill  in  the  an-angement  of  parties  in  respect  of  613 

Separate  report  : 
Vide  tit.  Report. 

Service  : 

On  the  solicitor  in  London  of  a  person  appearing  in  any 
proceeding  before  the  court  or  master,  and  not  heing  a 
party,  good,  except  in  matters  of  contempt  requiring 
personal  service 630 


ENGLISH  ORDERS  IN  FORCE  1842.  733 


Paob. 

Servick  of  process  : 

Vide  tit.  Process,  Suhpmna,  Subjjoma  to  appear  and  answer. 

When  no  direct  relief  is  sought 701 

Memorandum  in  such  cases 7f'l 

Defendant  not  appearing  on  such,  effect  of 701 

Setting  down  cause  for  hearing  : 

Time  within  which  the  plaintiff  should  set  down  the  cause,  G16 

Solicitor  : 

Is  liable  to  pay  or  reimburse  his  client  costs  occasioned  by 

his  negligence  or  misbehavior "- ' 

Power  of  master  to  direct  parties  to  be  represented  by  a 

different  solicitor "'^^ 

When  service  on  good "'^" 

Vide  tit.  Costs,  Fees,  Lien,  Master,  Production  of  documents, 

Solicitor  and  client,  Subpoena  to  appear  and  ansxcer. 

Solicitor's  book: 

What,  and  where  kept 693 

Entries  in  said  book  by 693 

Entry  in,  necessary  before  proceedings 695 

Solicitor  and  client: 

When  correspondence  between,  is  protected  from  produc- 
tion     611 

Vide  tit.  Solicitor, 

Speeding  cause : 

Form  of  order  on  plaintiff's  undertaking  to  speed  cause. .   618 
Plaintiff  must  pay  the  defendant's  costs  of  motion  to  dis- 
miss on  giving  this  undertaking 618 

Stay  of  proceedings  : 

Application  to  stay  proceedings  upon  any  decree  or  order 
appealed  from  to  be  now  made  to  the  judge  who  pro- 
nounced such  decree  or  order 631 


734  INDEX. 

Pa  OB. 

SUBPCENA,    GENERAL    DIRECTIONS  : 

All  writs  of,  to  be  prepared  by  the  solicitor 653 

Mode  of  issuing 653 

Service 654 

Time  prescribed  for  service  of  all  writs  of  subpoena  (ex- 
cept for  costs) 655 

Mode  of  correcting  errors  in t .  655 

To  appear  and  answer : 

Form  of  memorandum  at  foot  of 698 

May  in  all  cases  be  returnable  immediately 603 

Solicitor's  fees  upon 654 

Mode  of  correcting  errors  in 655 

To  rejoin  : 
Service  on  clerk  in  court  good 622,  655 

To  hear  judgyncnt : 
Service  of,  on  clerk  in  court  good 622 

Supplemental  bills  : 

What  need  not  state 710 

Time: 

For  answering,  vide  tit.  Answering,  time  for. 

Vide  tit.  Month  ;  Anstvering,  time  for ;   Demtirrer ;  Plea; 

Sunday. 
For  pleading,  same  in  country  as  in  city  causes 700 

Traversing  note  : 

What  and  when  plaintiff  may  file  it 700 

Not  to  be  filed  without  order 700 

On  overruling  of  plea  or  demurrer 705 

Trustee  : 

Vide  tit.  Escheat,  Forfeiture,  Process. 

Undertaking  to  speed  cause : 

Vide  tit.  Dismissal  of  hill  for  tvant  of  prosecution. 


ENGLISH  ORDERS  IN  FORCE  1842.  735 

Paob 

Vice  chancellor : 

Vide  tit.  Lord  cliancellor. 

Viva  voce  : 

When  and  xcliom  the  master  at  liis  discretion  may  examine  646 
Mode  of  such  examination    646 

Warrant  before  the  master  : 

Every  warrant  now  peremptory 636 

Extent  of  attendance  upon   636 

Fees  thereof   636 

To  be  taken  out  and  scrvedyor  considering  decree  or  order,  636 

Manner  of  proceeding  thereupon,  and  regulating  future 
proceeding  in  the  reference,  and  tlie  form  of  such  pro- 
ceedings     633 

A  warrant  to  show  cause  why  a  warrant  on  preparing  re- 
port should  not  issue,  is  now  necessary 645 

Vide  tit.  Master. 

Witness  : 

Not  now  necessary  to  produce  at  the  seat  of  the  clerk  in 
court    623 

Notice  of  his  name  and  description  to  be  served 629 

Writings  : 

Vide  tit.  Production  of  documents. 

Writs  : 

To  collect  money 689 

Entry  of  order  for 689 

To  whom  delivered    690 

When  vcn.  cxp.  will  issue 690 

Endorsement  on 690 

Fees  on   691 

Where  to  be  served 694 

Of  assistance 697 


ORDERS  OF  MAY  8,  1845. 


The  Right  Honorable  John  Singleton,  Lord  Lyndhurst,  Lord 

High  Chancellor  of  Great  Britain,  by  and  with  the  advice 
and  assistance  of  the  Right  Honorable  Hexry  Lord  Lang- 
dale,  Master  of  the  Rolls,  the  Right  Honorable  Sir  Lance- 
lot Shadwell,  Vice  Chancellor  of  England,  and  the  Right 
Honorable  the  Vice  Chancellor  Sir  James  Wigram,  doth 
hereby,  in  pursuance  of  an  Act  of  Parliament  passed  in  the 
fourth  year  of  the  reign  of  her  present  Majesty,  intituled  "  An 
Act  for  facilitating  the  administration  of  justice  in  the  Court 
of  Chancery,"  and  of  an  act  passed  in  the  fourth  and  fifth 
years  of  the  reign  of  her  present  Majesty,  intituled  "  An  Act 
to  amend  an  act  of  the  fourth  year  of  the  reign  of  her  present 
Majesty,  intituled  *  An  Act  for  facilitating  the  administration 
of  justice  in  the  Court  of  Chancery,'"  and  in  pursuance  and 
execution  of  all  other  powers  enabling  him  in  that  behalf, 
order  and  direct  that  all  and  every  the  rules,  orders,  and  di- 
rections hereinafter  set  forth  shall  henceforth  be,  and  for  all 
purposes  be  deemed  and  taken  to  be  General  Orders  and  Rules 
of  the  High  Court  of  Chancery,  viz  : 

Order  I. 

Tlie  several  orders  comprised  iu  the  general  oi-der  of 

the  3d  of  April,  1828,  which  are  respectively  ininibered 

1,  2,  3,  4,  5,  6,  8,  11,  12,  13,  14,  15,  IG,  17,  18,  10,  20,  22, 

31,  37,  and  38,  and  the  amendments  made  by  the  general 
47 


738  APPENDIX. 


order  of  the  23d  day  of  November,  1831,  in  sucli  of  the 
same  orders  as  are  respectively  numbered  6,  13,  IG,  17,  18, 
and  19,  and  also  the  general  order  of  the  3d  day  of  April, 
1830,  and  also  the  several  orders  comprised  in  the  general 
orders  of  the  21st  of  December,  1833,  which  are  respec- 
tively numbered  1,  T,  8, 10, 12, 13, 14, 18,  21, 22,  26,  34,  35, 
and  36,  and  the  several  orders  comprised  in  the  general 
order  of  the  9th  of  May,  1839,  which  are  respectively  num- 
bered 1  and  2,  and  the  several  orders  comprised  in  the 
general  order  of  the  26th  of  August,  1841,  which  are  re- 
spectively numbered  1,  2,  3,  4,  5,  8,  14,  20,  21,  22,  33,  34, 
and  35,  and  the  several  orders  comj)rised  in  the  general 
order  of  the  11th  of  April,  1842,  which  are  respectively 
numbered  1,  2,  4  and  5,  and  all  other  orders  and  parts  of 
orders,  so  far  as  such  other  orders  and  parts  of  orders  are 
inconsistent  with  these  orders,  but  not  further  or  otherwise, 
are  hereby  abrogated  and  discharged. 

Order  II. 
All  former  orders  and  parts  of  orders  not  specified  in 
Order  I,  so  far  as  the  same  are  now  in  force,  and  consistent 
with  these  orders,  are  to  remain  in  full  force  and  effect. 

Order  III. 
These  orders  are,  as  to  all  suits  now  pending  or  hereafter 
to  be  commenced,  to  take  effect  on  the  28th  day  of  Octo- 
ber, 1845. 

Order  IV. 

In  these  orders  the  following  words  have  tlie  several 
meanings  hereby  assigned  to  them,  over  and  above  their 


ENGLISH  ORDERS  OF  1845.  739 

several  ordinary  meanings,  unless  there  be  something  in 
the  suLject  or  context  repugnant  to  such  construction,  viz : 

1.  Words  importmg  the  singular  numher  include  the  })lural 

number,  and  words»inij)orting  the  plural  numljer  in- 
clude the  singular  number. 

2.  Words  importing  the  masculme  gender  includes  females. 

3.  The  word  person  or  party  includes  a  body  pohtic  or 

corporate. 

4.  The  word  bill  includes  information. 

5.  The  word  plaintiff  includes  informant. 

Order  V. 
The  several  offices  of  the  court,  except  the  offices  of  the 
accountant  general  and  of  the  masters  in  ordinary  and  tax- 
ing masters,  are  to  l^e  open  on  every  day  of  the  year,  except 
Sundays,  Good  Friday,  Monday  and  Tuesday  in  Easter 
week,  Christmas  day,  and  all  days  appomted  by  proclama- 
tion to  be  observed  as  days  of  general  fast  or  thanksgiving. 

Order  VI. 
The  offices  of  the  accountant  general,  and  of  the  masters 
in  ordinary  and  taxing  masters,  are  to  be  open  on  every 
day  of  the  year,  except  the  days  specified  in  Order  V.,  and 
excej)t  during  vacations. 

Order  VIT. 
The  offices  of  the  vacation  master  in  ordinary,  and  of  the 
vacation  taxing  master,  are  to  be  open  during  the  vacations 
on  every  day  except  the  day  specified  in  Order  V. 


740  APPENDIX. 


Order  VIII. 
The  Yacatlons  to  be  observed  in  several  offices  of  tbe 
court,  except  in  tlie  office  of  the  accountant  general,  are  to 
be  four  in  every  year,  viz :  the  Editer  vacation,  the  Whitsun 
vacation,  the  Long  vacation,  and  the  Christmas  vacation. 

1.  The  Easter  vacation  is  to  commence  and  terminate  on 

such  days  as  the  lord  chancellor  shall  every  year  spe- 
cially direct. 

2.  The  Whitsun  vacation  is  to  commence  on  the  third  day 

after  Easter  term,  and  to  terminate  on  the  second  day 
before  Trinity  term  in  every  year. 

3.  The  Long  vacation  is  to  commence  on  the  10th  day  of 

August,  and  terminate  on  the  28th  day  of  October, 
in  every  year. 

4.  The  Christmas  vacation  is  to  commence  on  the  24th  day 

of  December  in  every  year,  and  terminate  on  the  6th 
day  of  the  following  month  of  January  ;  and 

5.  Tlie  days  of  the  commencement  and  termination  of  each 

vacation  are  to  be  included  in  and  reckoned  part  of 
such  vacation. 

Order  IX. 
The  vacations  in  the  office  of  the  accountant  general  are 
to  be  the  same  as  in  the  other  offices,  except  as  to  the  long 
vacation,  which,  in  that  office,  is  to  commence  and  termi- 
nate on  such  days  as  the  lord  chancellor  shall  every  year 
direct. 

Order  X. 
The  loi'd  chancellor  may  from  time  to  tune,  l)y  special 
order,  direct  the  offices  to  be  closed  on  days  other  than 
those  mentioned  in  Order  V,  and  direct  any  of  the  vaca- 


ENGLISH  ORDERS  OF  1845.  741 

tions  to  commence  and  terminate  on  days  different  from 
the  fixed  days  mentioned  in  Order  VIII. 

Order  XI. 
When  any  limited  time  fi'om  or  after  any  date  or  event 
is  appointed  or  allowed  for  doing  any  act  or  taking  any 
proceeding,  tlie  computation  of  such  limited  time  is  not  to 
include  the  day  of  such  date  or  of  the  happening  of  such 
event,  but  is  to  commence  at  the  begmniug  of  the  next  fol- 
lowing day ;  and  the  act  or  proceeding  is  to  be  done  or 
taken  at  the  latest  on  the  last  day  of  such  limited  time  ac- 
cording to  such  computation. 

Order  XII. 
When  the  time  for  doing  any  act  or  taking  any  proceed- 
ing is  lunited  by  months  not  expressed  to   be   calendar 
months,  such  time  is  to  be  computed  by  Imiar  months  of 
twenty-eight  da}^s  each. 

Order  XIIT. 
Wlien  the  time  for  doing  any  act  or  taking  any  proceed- 
ing expires  on  a  Sunday  or  other  day  on  which  the  offices 
are  closed,  and  by  reason  thereof  such  act  or  proceeding 
can  not  be  done  or  taken  on  that  day,  such  act  or  proceed- 
ing is,  so  far  as  regards  the  time  of  doing  or  taking  the 
same,  to  be  held  to  be  duly  done  or  taken,  if  done  or  taken 
on  the  day  on  which  the  offices  shall  next  open. 

Order  XIV. 
The  times  of  vacation  are  not  to  be  reckoned  in  the  com- 
putation of  the  times  appointed  or  allowed  for  tlie  following 
purposes : 


742  APPENDIX. 


1.  Amending  or  obtaining  orders  for  leave  to  amend  bills, 

2.  Filing  or  referring  exceptions,  or  obtaining  a  master's 

report  on  exceptions,  in  cases  where  tbe  time  is  not 
limited  by  tlie  order  of  reference,  or  by  notice  given 
pursuant  to  article  21,  of  Order  XVI. 

3.  Setting  down  pleas,  demmTers,  or  objections,  for  want 

of  parties. 

4.  Filing  replications,  or  setting  down  causes  under  tlie 

directions  of  article  41,  of  Order  XVI. 

Order  XV. 
The  day  on  which  an  order  that  the  plaintiff  do  give 
security  for  costs  is  served,  and  the  time  thenceforward 
until  and  including  the  day  on  which  such  security  is  given, 
is  not  to  be  reckoned  in  the  computation  of  time  allowed 
a  defendant  to  plead,  answer,  or  demur. 

Order  XVI. 
The  times  of  procedure  are  to  be  the  same  in  town  causes 
and  country  causes ;  and  in  the  cases  hereinafter  mentioned 
are  to  be  as  follow : 

1.  The  service  of  any  subpoena,  except  a  subpoena  for  costs, 

is  to  be  of  no  validity  if  not  made  within  twelve  weeks 
after  test  of  the  writ. 

2.  The  service  of  a  copy  of  a  bill  upon  a  defendant  under 

the  23d  of  the  orders  of  the  26th  August,  1841,  is  to 
be  of  no  validity  if  not  made  within  twelve  weeks 
from  the  filing  of  such  bill,  unless  the  court  shall  give 
leave  for  such  ser\'ice  to  be  made  after  the  expiration 
of  such  twelve  weeks. 

3.  If  a  defendant  be  served  with  a  subpoena  to  appear  to, 

or  to  appear  to  and  answer  a  bill,  he  is  to  appear 


ENGLISH  ORDERS  OF  1845.  743 

thereto  witliiu  eiglit  days  uf'ter  the  service  of  such 
subpa'iiti. 

If  lie  does  not,  he  becomes  sultject  to  the  fulLjw- 
ing  Habihties: 

1.  An  attachment  may  be  issued  against  him. 

2.  An  appearance  may  be   entered  for  him  on  the 

ai^phcation  of  the  pLaintiff. 

3.  If  the  bill  prays  for  an  injunction  to  stay  pro- 

ceedings at  law,  the  plaintiff  may  obtain  an 
order  for  the  common  injunction,  if  no  injunc- 
tion has  been  previously  obtained. 

4.  In   cases  where  a  subpoena  has  been   served   in   the 

manner  si:)ecified  by  Order  XXIX,  and  a  defendant 
is  in  default  for  want  of  apj)earance,  the  plaintiff  may, 
within  three  weeks  after  such  service,  cause  an  ap- 
pearance to  be  entered  for  such  defendant  by  a  record 
and  Avrit  clerk,  "uithout  special  order. 

5.  A  defendant,  served  with  a  copy  of  a  bill  under  the 

23d  of  the  orders  of  the  26th  August,  1841,  may, 
within  twelve  days  after  such  service,  enter  a  common 
or  special  appearance  under  the  26th  or  27th  of  the 
same  orders. 

If  he  does  not  do  so,  he  can  not  afterwards  enter 
either  a  common  or  special  appearance  without  leave 
of  the  court ;  and  he  is  bound  by  the  proceedings  in 
the  cause,  unless  the  court  otherwise  directs. 

6.  Any  pei*son  or  party  ha\dng  filed  exceptions  to  any 

pleading  or  other  matter  depending  before  the  court 
for  scandal,  and  any  party  having  filed  exceptions  for 
impertinence,  is  to  obtain  an  order  to  refer  the  same 
to  the  master  within  six  days  after  the  filing  thereof. 


744  APPENDIX. 


If  he  does  not,  the  exceptions  are  to  be  considered 
as  abandoned,  and  the  costs  are  to  be  paid  l)y  the 
exceptant. 

7.  Any  person  or  party  having  obtained  an  order  to  refer 

exceptions  to  the  master  for  scandal,  and  any  party 
ha^dng  obtained  an  order  to  refer  exceptions  to  the 
master  for  impertinence,  is  to  obtain  the  master's 
report  thereon  within  fourteen  days  after  the  date  of 
the  order,  or  within  such  further  time  as  the  master 
thinks  fit  to  allow. 

If  he  does  not,  the  order  is  to  be  considered  as 
abandoned,  and  the  costs  are  to  be  paid  by  the 
exceptant. 

8.  Any  person  or  party  objecting  to  the  master's  report 

that  any  pleading  or  other  matter  referred  to  him  is 
scandalous,  and  any  party  objecting  to  the  master's 
report  that  any  pleading  or  other  matter  referred  to 
him  is  impertinent,  has  four  days  after  the  filmg  of 
the  report,  within  which  he  may  file  and  set  down 
exceptions  thereto  and  serve  the  order  for  setting 
down  the  same,  before  the  scandal  or  impertinence  is 
expunged. 

If  he  does  not  do  so,  the  scandalous  or  impertinent 
matter  is  to  be  expunged. 

9.  Any  person  or  party  objecting  to  the  master's  report 

that  any  pleading  or  other  matter  referred  to  him  is 
not  scanclalous,  and  any  party  objecting  to  the  mas- 
ter's report  that  any  pleading  or  other  matter  referred 
to  him  is  not  impertinent,  has  four  days  after  the 
filing  of  the  report,  within  which  he  may  file  and  set 
down  exceptions  thereto,  and  serve  the  order  for 
setting  down  the  same. 


ENGLISH  ORDERS  OF  1845.  745 

10.  A  (lefendant   may  demur   alone   to   any  "bill  Tvithin 

twelve  days  after  Lis  a})2)earance  thereto,  Lut  not 
afterwards. 

11.  A  defendant  desiring  to  avoid  tlie  common  injunction 

for  default  of  answer  has  for  that  purpose  only  eight 
days  after  appearance,  within  which  he  is  to  plead, 
answer,  or  demur  to  a  hill  pra}'ing  an  injunction  to 
stay  proceedings  at  law. 

If  he  does  not  plead,  answer,  or  demur  wdtliin  such 
eight  days,  the  plaintiff  is  entitled  as  of  course,  and 
without  an  attachment,  to  the  common  uij unction. 

12.  A  defendant  who  has  appeared  in  person  or  ]jy  his 

own  solicitor,  and  desires  to  show  cause  against  an 
order  to  revive  being  made,  has  for  that  purpose  only 
eight  days  after  such  appearance,  within  which  he  is 
to  plead  or  demur  to  a  hWl  of  revivor. 

If  he  does  not  plead  or  demur  A^dthin  such  eight 
days,  the  plaintiff  is  entitled  as  of  course  to  the  com- 
mon order  to  revive. 

13.  A  defendant  is  to  plead,  answer,  or  demur,  not  de- 

murring alone,  to  any  original  or  supplemental  bill, 
within  six  weeks  after  appearance  thereto  has  been 
entered  by  or  for  him. 

If  he  does  not,  and  if  he  procures  no  enlargement 
of  the  time  allowed,  he  is  subject  to  the  following 
liabilities : 

1.  An  attachment  may  be  issued  against  him. 

2.  He  may  be  committed  to  j^rison,  and  brought  to 

the  bar  of  the  court ;  and 

3.  The  plaintiff  may  file  a  traversing  note,  or  pro- 

ceed to  have  the  bill  taken  p?'o  confesso  against 
him. 


746  APPENDIX. 


li.  If  the  plaintiff  amends  his  "bill  under  an  order  for 
leave  to  amend  obtained  and  served  before  answer, 
a  defendant  is  to  plead,  answer,  or  demur,  not  demur- 
riuir  alone,  to  sucli  amended  bill,  within  six  weeks 
after  he  is  served  with  notice  of  the  amendment  of 
such  bill. 

If  he  does  not,  and  if  he  procures  no  enlargement 
of  the  time  allowed,  he  is  subject  to  the  following 
Habilities : 

1.  An  attachment  may  be  issued  against  him. 

2.  He  may  be  committed  to  prison,  and  brought  to 

the  bar  of  court. 

3.  The  plaintiff  may  file  a  traversing  note,  or  proceed 

to  have  the  bill  taken  p?'0  confesso  against  him. 

15.  If  a  defendant  is  ordered  to  answer  amendments  and 

exceptions  together,  he  is  to  put  in  his  further  answer 
and  his  answer  to  the  amendments  of  the  bill  within 
four  weeks  after  he  is  served  with  notice  of  the 
amendment  of  such  bill. 

If  he  does  not,  and  if  he  procures  no  enlargement 
of  the  time  allowed,  he  is  subject  to  the  follo-wdng 
liabilities : 

1.  An  attachment  may  be  issued  against  him. 

2.  He  may  be  committed  to  prison,  and  brought 

to  the  bar  of  the  court. 

3.  The  plaintiff  may  file  a  traversing  note,  or  pro- 

ceed to  take  the  bill  pro  confesso  against  him. 

16.  If  a  defendant,  having  already  answered,  is  served 

with  a  svJ^pmna  to  appear  to  and  answer  an  amended 
bill,  he  is  to  plead,  answer,  or  demur,  not  demurring 
alone,  to  such  amended  bill,  within  four  weeks,  after 
an  appearance  thereto  has  been  entered  by  or  for  him. 


ENGLISH  ORDERS  OF  1845.  747 

If  he  does  not,  and  if  he  procures  no  enlargement 
of  the  time  allowed,  he  Is  subject  to  the  follo^ving 
lia1)ilities : 

1.  An  attachment  may  be  issued  against  him. 

2.  He  may  be  committed  to  prison,  and  brought  to 

the  bar  of  the  court ;  and 

3.  The  plaintiff  may  file  a  traversing  note,  or  proceed 

to  have  the  bill  taken  ^;/'0  confess-o  against  him. 

17.  Within  twelve  days  after  the  filing  of  a  demuiTer  to 

the  whole  bill,  the  plaintiff  desiiiug  to  submit  such 
demurrer  to  the  judgment  of  the  coui-t  Ls  to  cause  the 
same  to  be  set  down  for  argument. 

If  he  does  not,  such  demurrer  is  to  be  held  suffi- 
cient, and  the  plaintiff  is  to  be  held  to  have  submitted 
thereto.  • 

18.  Within  three  weeks  after  the  filing  of  a  demurrer  to 

part  of  a  bill,  the  plaintiff  desiring  to  submit  such 
demurrer  to  the  judgment  of  the  com-t  is  to  cause  the 
same  to  be  set  down  for  argument. 

If  he  does  not,  such  demurrer  is  to  be  held  sufficient, 
and  the  plaintiff  is  to  be  held  to  have  submitted 
thereto. 

19.  Within  three  weeks  after  the  filing  of  a  plea  to  the 

whole  or  part  of  a  bill,  the  plaintiff'  desiring  to  submit 
such  plea  to  the  judgment  of  the  court  is  to  cause  the 
same  to  be  set  down  for  argument. 

If  he  does  not,  such  plea  is  to  be  held  good,  to  the 
same  extent  and  for  the  same  purposes  as  a  plea 
allowed  upon  argument,  and  the  plaintiff  is  to  be 
held  to  have  submitted  thereto. 

20.  A  defendant  whose  answer   is   not   excepted  to,   or 

referred  back  on  former  exceptions,  alleging  that  the 


748  APPENDIX. 


plaintiff  is  prosecuting  him  in  tliis  court,  and  also  at 
law  for  the  same  matter,  may,  upon  the  expiration  of 
eight  days  after  his  answer  or  fm-ther  answer  is  filed, 
obtain  as  of  course,  on  motion  or  petition,  the  usual 
order  for  the  plaintiff  to  make  his  election  in  which 
court  he  vnR  proceed. 

21.  A  defendant  whose  answer  is  excepted  to,  or  referred 

back  on  former  exceptions,  alleging  that  the  j)laintiff 
is  prosecuting  him  in  this  court,  and  also  at  law  for 
the  same  matter,  may  by  notice  in  writing  require 
the  plaintiff  to  procure  the  master's  report  upon  the 
exceptions  within  four  days  from  the  service  of  the 
notice. 

And  if  the  plaintiff  does  not  obtain  the  master's 
report  within  suc^fi  four  days,  such  defendant  is 
entitled  as  of  course,  on  motion  or  petition,  to  obtain 
the  usual  order  for  the  plaintiff  to  make  his  election 
in  which  court  he  will  proceed. 

22.  After  the  filing  of  a  defendant's  answer,  the  j^laintiff 

has  six  weeks  within  which  he  may  file  exceptions 
thereto  for  insufficiency. 

If  he  does  not  file  exceptions  within  six  weeks,  such 
answer  on  the  expiration  of  the  six  weeks  is  to  be 
deemed  sufficient. 

23.  A   defendant  desiring  to  avoid   a  reference  to  the 

master  of  exceptions  to  his  answer  for  insufiiciency, 
has  for  that  purpose  only  eight  days  after  the  filing  of 
such  exceptions  within  which  he  may  submit  to  the 
same  before  reference. 

24.  If  a  defendant,  not  being  in   contempt,  submits  to 

exceptions  to  his  answer  for  insufficiency  before  the 
plaintiff  has  obtained  an  order  to  refer  the  same  to 


ENGLISH  ORDERS  OF  1845.  749 

the  master,  lie  is  allowed  three  weeks  from  the  date 
of  the  suTnmssion  within  which  he  is  to  put  in  his 
further  answer  to  the  bill. 

25.  The  i)laintiif,  having  filed  exceptions  for  insufficiency 
to  a  defendant's  answer,  is  not  to  procure  an  order  to 
refer  them  to  the  master  before  the  expiration  of 
eight  days  from  the  filing  of  such  exceptions,  unless 
in  a  case  of  election  he  is  required  by  notice  in  writing 
from  such  defendant  to  procure  the  master's  report  on 
such  exceptions  in  four  days,  pursuant  to  article  21  of 
this  order. 

2G.  The  plaintiff,  having  filed  exceptions  for  insufficiency 
to  a  defendant's  answer,  is  to  procure  an  order  to 
refer  them  to  the  master  after  the  ex]3iration  of  eight 
days,  Init  T\ithin  fourteen  days  from  the  filing  of  such 
exceptions. 

If  he  does  not,  the  answer,  on  the  expiration  of  such 
fourteen  days,  is  to  be  deemed  sufficient. 

27.  The  plaintifi^  ha^ang  obtained  an  order  for  referring 

to  the  master  exceptions  to  a  defendant's  answer  for 
insufficiency,  or  for  referring  back  a  defendant's  answer 
on  former  exceptions  for  insufficiency,  is  to  obtain  the 
master's  report  thereon  within  fom*teen  days  from  the 
date  of  the  order,  or  within  such  fm'ther  time  as  the 
master  shall  allow. 

If  he  does  not,  the  answer,  on  the  expiration  of  such 
fourteen  days  or  further  time,  is  to  be  deemed  suffi- 
cient. 

28.  The  i)laintiif,  ha^^ng  shown  exceptions  to  a  defendant's 

answer  for  insufficiency  as  cause  against  dissohdng  an 
injunction,  is  to  obtain  the  master's  report  thereon 


750  APPENDIX. 


within  four  days  after  tlie  date  of  tlie  order  to  refer 
tliem. 

If  lie  does  not,  tlie  injunction  is  dissolved. 

29.  After  tlie  filing  of  exceptions  to  a  defendant's  answer 

for  insufficiency,  and  any  further  answer  put  in,  the 
plaintiff  has  fourteen  days  from  the  filing  of  such 
further  answer  witliin  which  he  may  refer  the  answer 
back  to  the  master  on  the  old  exceptions. 

The  answer,  if  not  referred  back  on  the  old  excep- 
tions within  fom-teen  days  after  such  further  answer 
put  in,  is,  on  the  expiration  of  such  fom*teen  days,  to 
be  deemed  sufficient. 

30.  If,  after  a  reference  of  exceptions  for  insufficiency,  or  a 

reference  back  of  the  answer  on  the  old  exceptions,  a 
defendant,  not  being  in  contempt,  submits  to  answer, 
or  the  master  finds  the  answer  to  be  insufficient,  the 
master  is  in  such  cases  to  appoint  the  time  within 
which  such  defendant  is  to  put  in  his  farther  answer. 
If  such  defendant  does  not  obtain  time  from  the 
master,  or  does  not  answer  within  the  time  which  the 
master  allows,  the  plaintiff  may  sue  out  process  of 
contempt  against  such  defendant. 

31.  The  answer  of  a  defendant  ls  to  be  deemed  sufficient — 

1.  If  no  exception  for  insufficiency  be  filed  thereto 

within  six  weeks  after  the  filing  of  such  answer. 

2.  If  (exceptions  being  filed)  the  plaintiff*  does  not, 

^vithiii  fourteen  days  after  the  fihng  thereof, 
oljtain  an  order  to  I'efer  them. 

3.  If  (after   obtaining  such   order)  he    does   not 

obtain  the  master's  report  thereon  within  four- 
teen days  from  the  date  of  the  order,  or  within 
such  further  time  as  the  master  may  allow. 


ENGLISH  ORDERS  OF  1S45.  751 


4.  If  lie  does  not  obtain  an  order  to  refer  tlie  answer 

l)ack  to  tlie  master  on  the  old  exceptions  within 
fourteen  days  after  the  filing  of  a  further 
answer. 

5.  If  (after  obtainhig  such  order)  he  does  not  obtain 

the  master's  report  thereon  within  fom-teen 
days  from  the  date  of  the  order,  or  within 
such  further  time  as  the  master  may  allow. 

32.  In  cases  Avhere  there  is  a  sole  defendant,  or  where, 

there  being  several  defendants  they  all  join  in  the 
same  answer,  the  plaintiff  may,  after  answer  and  before 
replication  or  undertaking  to  reply,  obtain  one  order 
of  course  for  leave  to  amend  the  bill,  at  any  time 
within  four  weeks  after  the  answer  is  deemed  or  found 
to  be  sufficient. 

33.  In  cases  where  there  are  several  defendants  who  do 

not  join  in  the  same  answer,  the  plaintiff  (if  not  pre- 
cluded from  amending,  or  limited  as  to  the  time  of 
amending  by  some  former  order)  may,  after  answer 
and  before  replication  or  undertaking  to  reply,  at  any 
time  within  four  weeks  after  the  last  answer  is  deemed 
or  found  to  be  sufficient,  obtain  one  order  of  course 
for  leave  to  amend  his  bill. 

34.  The  plaintiff,  ha^dng  obtained  an  order  for  leave  to 

amend  his  bill,  has,  in  all  cases  in  which  such  order  is 
not  made  without  prejudice  to  an  iuj miction,  fourteen 
days  after  the  date  of  the  order  within  which  he  may 
amend  such  bill. 

If  such  bill  be  not  amended  within  such  fourteen 
days,  the  order  for  leave  to  amend  ]3ecomes  void,  and 
the  cause,  as  to  dismissal,  stands  in  the  same  situation 
as  if  such  order  had  not  been  made. 


752  APPENDIX. 


35.  The  i)Lilntiff,  liaving  obtained  an  order  for  leave  to 

amend  Lis  Lill  without  prejudice  to  an  injunction, 
must  amend  such  bill  Avdthin  seven  days  from  the  date 
of  the  order. 

If  such  bill  be  not  amended  within  such  seven  days, 
the  order  for  leave  to  amend  becomes  void,  and  the 
cause,  as  to  dismissal,  stands  in  the  same  situation  as 
if  sucli  order  had  not  been  made. 

36.  A  defendant,  being  served  with  subpoena  to  answer 

an  amended  bill  praying  an  injunction  to  stay  pro- 
ceedings at  law,  and  desiring  to  avoid  a  motion  for 
an  injunction  on  affidavit  of  the  truth  of  the  amend- 
ments, has,  for  that  purpose,  only  eight  days  after 
appearance,  within  which  he  is  to  plead,  answer,  or 
demur  to  such  amended  bill. 

37.  The  plaintiff  (not  obtaining  an   order  for  leave   to 

amend  his  Ijill)  must  either  file  his  replication  or  set 
doTVTi  the  cause  to  be  heard  on  bill  and  answer,  within 
four  weeks  after  the  last  answer  is  deemed  or  found 
to  be  sufficient. 

Otherwise  any  defendant  may  move  to  dismiss  the 
bill  for  want  of  prosecution. 

38.  If  the  i)laintiff  amends  his  bill  without  requiring  an 

answer  to  the  amendments,  any  defendant  desiring  to 
answer  the  same,  must  put  in  his  answer  thereto 
within  eight  days  after  being  served  with  notice  of 
the  amendment  of  the  bill,  or  within  such  further 
time  as  the  master  may  allow. 

39.  Where  the  plaintiff  amends  his  ])ill  without  requiring 

an  answer  to  the  amendments,  and  no  answer  is  put 
in  thereto,  and  no  warrant  for  further  time  to  answer 
the  same  is  served  within  eight  days  after  service  of 


ENGLISH  ORDERS  OF  1845.  753 


the  notice  of  the  amendment  of  such  Ijill,  the  })haintlff 
is,  after  the  expiration  of  such  eight  days,  hut  witliiii 
fourteen  days  from  the  time  of  such  ser\  ice,  either  to 
file  his  replication,  or  to  set  down  the  cause  to  he 
heard  upon  hill  and  answer. 

Otherwise  any  defendant  may  move  to  dismiss  the 
hill  for  want  of  prosecution. 

40.  Where  the  plaintiff  amends  his  bill  without  requiring 

an  answer  to  the  amendments,  and  a  defendant,  within 
eight  days  after  the  service  of  the  notice  of  the  filing 
of  the  amended  hill,  serves  a  warrant  for  further  time 
to  answer  the  amendments,  but  the  master  refuses  to 
grant  such  further  time,  the  plaintiff  is,  within  fourteen 
days  after  such  refusal,  either  to  file  his  rephcation  or 
to  set  down  the  cause  to  be  heard  on  bill  and  answer. 
Otherwise  any  defendant  may  move  to  dismiss  the 
bill  for  want  of  prosecution. 

41.  If  a  defendant  puts  in  an  answer  to  amendments  to 

which  the  plaintiff'  has  not  requu*ed  an  answer,  the 
plaintiff'  must,  within  fourteen  days  after  the  filing  of 
such  answer,  either  file  his  rephcation  or  set  down  the 
cause  to  be  heard  on  bill  and  answer,  unless,  in  the 
mean  time,  he  oljtains  from  the  court  a  special  order 
for  leave  to  except  to  such  answer  or  to  amend  the 
bill. 

Otherwise  any  defendant  may  move  to  dismiss  the 
bill  for  want  of  prosecution. 

42.  Parties  desuing  to  examine  witnesses  by  commission, 

are  not  to  apply  for  a  warrant  to  name  commissioners 
to  examine  witnesses,  until  after  the  expiration  of 
four  days  from  the  filing  of  the  rephcation. 

48 


754  APPENDIX. 


43.  After  the  replication  is  filed,  parties  have  two  months 

to  examine  their  witnesses ;  and  if  such  two  months 
expire  in  the  Long  vacation,  the  time,  wdthin  which 
the  parties  are  to  examine  their  witnesses,  is  extended 
to  the  second  day  of  the  ensning  Michaehnas  term. 

44.  After  the  ex]^)iration  of  two  months  from  the  filing  of 

the  replication,  publication  is  to  pass,  nnless  the  time 
for  publication  has  been  enlarged,  in  which  case  it  is 
to  pass  on  the  expiration  of  the  enlarged  time  ;  but 
if  the  two  months  or  the  enlarged  time  expire  in  the 
Long  vacation,  publication  is  not  to  pass  till  the 
second  day  of  Michaelmas  term ;  and  on  that  day  it 
is  to  pass,  unless  the  time  has  been  enlarged. 

45.  Within  four  weeks  after  publication  has  passed,  the 

plaintiff  is  to  set  down  his  cause  and  obtain  and  serve 
a  subpoena  to  hear  judgment. 

Otherwise  any  defendant  may  move  to  dismiss  the 
bill  for  want  of  prosecution. 

46.  A  subpoena  to  hear  judgment  is  not  to  be  returnable 

at  any  time  less  than  one  month  from  the  test  of  the 
writ ;  and  it  is  to  be  served  at  least  ten  days  before 
the  return  thereof. 

47.  There  must,  unless  the  court  gives  special  leave  to  the 

contrary,  be  at  least  two  clear  days  between  the 
service  of  a  notice  of  motion  and  the  day  named  in 
the  notice  for  hearing  the  motion,  and  at  least  two 
clear  days  between  the  service  of  a  petition  and  the 
day  appointed  for  hearing  the  petition ;  but,  in  the 
computation  of  such  two  clear  days,  Sundays  and 
other  days  on  which  the  offices  are  closed,  except 
Monday  and  Tuesday  in  Easter  week,  are  not  to  be 
reckoned. 


ENGLISH  ORDERS  OF  1845.  755 


48.  There  must  Le  at  least  six  clear  days  Ijetweeu  the 

service  of  a  notice  of  motion,  Ijy  the  plaintiff,  for  the 
appointment  of  a  guardian,  Ly  whom  a  defendant 
who  is  an  infant  or  a  person  of  Aveak  intellect  or 
unsound  mind  may  defend  the  suit,  and  the  day 
named  in  the  notice  for  hearing  the  motion. 

49.  At  any  time  within  three  wrecks  after  the  execution  of 

an  attachment  for  A\'ant  of  answer,  the  plaintiff  may 
serve  a  defendant  so  attached  with  a  notice  of  motion 
that  the  bill  may  be  taken  pro  confesso  against  him, 
and  may  move  the  court  accordingly  as  directed  by 
Order  LXXVI. 

Order  XVII. 
No  order  is  to  be  made  for  leave  to  file  excejitions  nunc 
2W0  tunc. 

Order  XVIII. 
If  a  defendant,  using  due  diligence,  is  unable  to  put  in 
his  answer  to  a  bill  within  the  times  allowed  by  Order 
XVI,  the  master  (on  sufficient  cause  being  shown)  may 
allow  to  such  defendant  such  further>time,  and  on  such,  if 
any,  terms  as  to  the  master  seems  just. 

Order  XIX. 
The  master  may  enlarge  the  time  for  making  his  report 
upon  exceptions,  in  all  cases  where  the  time  is  not  limited 
by  the  order  of  reference,  or  by  notice  given  pursuant  to 
article  21  of  Order  XVI. 

Order  XX. 
In  all  cases  where  the  master  is  authorized  to  appoint 
the  time  for  any  proceeding,  or  to  enlarge  the  time  allowed 


756  APPENDIX. 


for  any  proceeding  by  general  order,  lie  may  further 
enlarge  any  time  so  appointed  or  enlarged,  by  himself,  and 
on  such,  if  any,  terms  as  to  Mm  seem  just,  provided  the 
application  for  such  enlargement  is  made  before  tlie  expi- 
ration of  the  time  previously  allowed,  and  he  is  satisfied 
that  such  enlargement  is  required  for  the  purposes  of 
justice,  and  not  with  a  view  to  create  unnecessary  delay. 

Order  XXI. 
The  power  of  the  court  to  enlarge  or  abridge  the  time 
for  doing  any  act,  or  taking  any  proceeding  in  a  cause, 
upon  such,  if  any,  terms  as  the  justice  of  the  case  requires, 
is  unaffected  by  these  orders. 

Order  XXII. 
Subpoenas  to  appear,  or  to  appear  and  answer,  which 
are  served  within  the  jurisdiction  of  the  court,  are  to  be 
made  returnable  within  eight  days  after  the  service  thereof 

Order  XXIII. 
Subpoenas  to  appear  or  to  appear  and  answer,  which  are 
served  out  of  the  jurisdiction  of  the  court,  are  to  be  made 
returnable  at  such  time  after  the  service  thereof  as  the 
court  by  special  order  may  direct ;  and  if  an  answer  be 
required,  each  such  subpoena  is  to  specify  the-  time  after 
service,  within  which  the  defendant  is  requu'ed  to  answer. 

Order  XXIV. 

All  writs  of  subpoena  in  this  court  are  to  be  prepared  by 

the  solicitor  of  the  party  requiring  the  same ;  and  the  seal 

for  sealing  the  same  is  to  be  marked  or  inscribed  with  the 

words  "  Subpoena  Office,  Chancery ;"  and  such  writs  are  to 


ENGLISH  ORDERS  OF  1845.  757 

be  in  tlie  terms  mentioned  at  the  foot  of  these  orders,  or 
as  near  as  may  Le,  with  such  alterations  and  variations  as 
circumstances  may  require. 

Order  XXV. 
In  the  interval  between  the  suing  out  and  service  of  any 
subpoena,  the  party  suing  out  the  same  may  correct  any 
error  in  the  names  of  parties  or  witnesses,  and  may  have 
the  writ  re-sealed,  upon  paj-ment  to  the  clerk  of  the 
subpcona  office  of  a  fee  of  one  shilling,  and  at  the  same 
time  leaving  a  corrected  praecipe  of  such  subpoena,  marked, 
altered  and  re-sealed,  and  signed  Avith  the  name  and 
address  of  the  solicitor  or  solicitors  sumg  out  the  same. 

Order  XXVI. 
Service  upon  a  defendant's  solicitor  of  a  subpoena  to 
answer  an  amended  bill,  or  to  hear  judgment,  is  to  be 
deemed  good  service  upon  the  party. 

Order  XXVII. 
After  the  allowance  of  or  submission  to  exceptions  to 
an  answer  for  insufficiency,  a  defendant  is  to  answer  within 
the  time  appointed,  without  being  served  Avith  any  sub- 
poena to  make  a  better  answer. 

Order  XXVIII. 
Where  the  plaintiff  has  omitted  to  serve  any  defendant 
with  a  copy  of  the  ))ill  under  the  23d  of  the  orders  of  the 
26th  of  August,  1841,  within  twelve  weeks  from  the  fding 
of  such  bill,  the  court  may,  if  it  shall  think  fit,  upon  the 
motion  of  the  plaintiff,  without  notice,  give  the  plaintiff 


758  APPENDIX. 


leave  to  serve  such  defendant  with  sncli  copy,  within  such 
time  and  \\Y)on  such  terms  as  to  the  court  seems  just. 

Order  XXIX. 
If  any  defendant,  not  appearing  to  be  an  infant  or  a 
person  of  weak  or  unsound  mind,  unable  of  himself  to 
defend  the  suit,  is,  when  within  the  jurisdiction  of  the 
court,  duly  served  with  a  subpoena  to  appear  to,  or  to 
appear  to  and  answer  a  bill,  and  refuses  or  neglects  to 
appear  thereto  within  eight  days  after  such  service,  the 
plaintiff  may,  after  the  exj^iration  of  such  eight  days,  and 
within  thi-ee  weeks  from  the  time  of  such  service,  apply  to 
the  record  and  writ  clerk  to  enter  an  appearance  for  such 
defendant;  and,  no  appearance  having  been  entered,  the 
record  and  writ  clerk  is  to  enter  such  appearance  accord- 
ingly, upon  being  satisfied,  by  affidavit,  that  the  subpoena 
was  duly  served  upon  such  defendant  personally  or  at  his 
dwelling-house  or  usual  place  of  abode;  and  after  the 
expiration  of  such  three  weeks,  or  after  the  time  aUowed 
to  such  defendant  for  appearing  has  exj^ired,  in  any  case 
in  which  the  record  and  writ  clerk  is  not  hereby  required 
to  enter  such  appearance,  the  plaintiff  may  a2:>p]y  to  the 
court  for  leave  to  enter  such  appearance  for  such  defendant ; 
and  the  court,  being  satisfied  that  the  subpoena  was  duly 
served,  and  that  no  appearance  has  been  entered  for  such 
defendant,  may,  if  it  so  thinks  fit,  order  the  same  accord- 
ingly. 

Order  XXX. 
Any  appearance  entered  at  the  instance  of  the  plaintiff 
for  a  defendant  who,  at  the  time  of  the  entry  thereof,  is 


ENGLISH  ORDERS  OF  1845.  759 


nil  infant  or  a  person  of  weak  ov  unsomid  inind,  iinaljle  of 
himself  to  defend  the  suit,  is  irregular  and  of  no  validity. 

Ordkr  XXXI. 
In  case  it  appears  to  the  court,  l»y  sufficient  evidence, 
that  any  defen(hint  against  whom  a  suhpa3na  to  appear  to, 
or  to  appear  to  and  answer  c-f  hill  has  issued,  has  been 
within  the  jurisdiction  of  the  court,  at  some  time  not  more 
than  two  years  before  the  suhpcena  was  issued,  and  that 
such  defendant  is  beyond  the  seas,  or  that  upon  inquiry  at 
his  usual  place  of  abode,  (if  he  had  any,)  or  at  any  other 
place  or  places  where,  at  the  time  when  the  subpcena  Avas 
issued,  he  might  probably  have  been  met  with,  he  could 
not  be  found,  so  as  to  be  served  with  process,  and  that,  in 
either  case,  there  is  just  ground  to  believe  that  such 
defendant  is  gone  out  of  the  realm,  or  otherwise  absconded 
to  avoid  being  served  with  process,  then,  and  in  such  case, 
the  court  may  order  that  such  defendant  do  aj^j^ear  at  a 
certain  day  to  T)e  named  in  the  order ;  and  a  copy  of  such 
order,  together  with  a  notice  thereof  to  the  eftect  set  forth 
at  the  foot  of  this  order,  may,  within  fourteen  days  after 
such  order  made,  be  inserted  in  the  London  Gazette,  and 
be  otherwise  published  as  the  court  directs ;  and  in  case 
the  defendant  does  not  appear  within  the  time  limited  1  )y 
such  order,  or  within  such  further  time  as  the  court 
appoints,  then,  on  proof  made  of  such  publication  as 
aforesaid  of  the  aforesaid  order,  the  court  may  order  an 
appearance  to  be  entered  for  the  defendant  on  the  appli- 
cation of  the  plaintiff. 

Xotice. — "A.  B.,  take  notice,  that  if  you  do  not  ap])ear 
pursuant  to  the  above  order,  the  plaintiif  may  enter 
an  appearance  for  you,  and  the  court  may  afterwai'ds 


760  APPENDIX. 


grant  to  tlie  plaintiff  such  relief  as  he  may  appear  to 
be  entitled  to  on  his  own  showing." 

Order  XXXII. 

If,  upon  default  made  ])y  a  defendant  in  not  isppearing 
to,  or  not  answering  a  bill,  it  appears  to  the  court  that 
such  defendant  is  an  infant^or  a  person  of  weak  or  unsound 
mind  not  so  found  by  inquisition,  so  that  he  is  unable  of 
himself  to  defend  the  suit,  the  court  may,  upon  the  appli- 
cation of  the  plaintiff,  order  that  one  of  the  solicitors  of 
the  court  be  assigned  guardian  of  such  defendant,  by  whom 
he  may  appear  to  and  answer,  or  may  answer  the  bill  and 
defend  the  suit. 

But  no  such  order  is  to  be  made,  unless  it  appears  to 
the  court,  on  the  hearing  of  such  application,  that  the 
subpoena  to  appear  to  and  answer  the  bill  was  duly  served, 
and  that  notice  of  such  application  was,  after  the  expiration 
of  the  time  allowed  for  appearing  to,  or  for  answering  the 
bill,  and  at  least  six  days  before  the  hearing  of  the  appli- 
cation, served  upon  or  left  at  the  dwelling-house  of  the 
person,  with  whom  or  under  whose  care  such  defendant 
was  at  the  time  of  serving  such  subpcBna,  and  (in  the  case 
of  such  defendant  being  an  infant  not  residing  with  or 
under  the  care  of  his  father  or  guardian)  that  notice  of 
such  application  was  also  served  upon  or  left  at  the 
dwelling-house  of  the  father  or  guardian  of  such  infant, 
unless  the  court,  at  the  time  of  hearing  such  application, 
thinks  fit  to  dispense  with  such  last  mentioned  services. 

Order  XXXIII. 

Where  a  defendant  in  any  suit  is  out  of  the  jurisdiction 
of  the  court. 


ENGLISH  ORDERS  OF  1845.  761 

1.  The  court,  upon  a})plicatioil  supported  Ijy  such  evidence 

as  sliall  satisfy  the  court  in  wliat  place  or  country  such 
defendant  is  or  may  probably  be  found,  may  order 
that  the  subpoena  to  appear  to,  or  to  appear  to  and 
answer  the  bill,  may  Tje  served  on  such  delendaut,  in 
such  place  or  country,  or  within  such  limits  aa  the 
court  thinks  fit  to  direct. 

2.  Such  order  is  to  limit  a  time  (depending  on  the  place 

or  country  within  which  the  subpcena  is  to  be  served ) 
after  service  of  the  subpoena,  within  which  such 
defendant  is  to  appear  to  the  bill,  and  also  (if  any 
answer  be  required)  a  tune,  Tvdthin  which  such  de- 
fendant is  to  plead,  answer,  or  demur,  or  obtain  from 
the  court  further  time  to  make  his  defence  to  the  bill. 

o.  At  the  time  when  such  subpoena  sliall  be  served,  the 
plaintiff  is  also  to  cause  such  defendant  to  be  served 
with  a  copy  of  the  bill,  and  a  copy  of  the  order  giving 
the  plaintiff  leave  to  serve  the  subpoena. 

4.  And  if,  upon  the  expiration  of  the  time  for  api^earinir, 
it  appears  to  the  satisfaction  of  the  court  that  such 
defendant  was  duly  served  with  the  subpoena,  and 
with  a  copy  of  the  bill  and  a  copy  of  the  order,  the 
court  may,  upon  the  application  of  the  plaintiff,  order 
an  appearance  to  be  entered  for  such  defendant. 

Order  XXXIV. 

Affidavits  filed  for  the  purpose  of  pro-sdng  the  service  of 
a  subpcena  upon  any  defendant  are  to  state  when,  where, 
and  how  such  sul^poena  Wiis  served,  and  by  whom  such 
service  was  effected. 


762  APPENDIX. 


Order*  XXXV. 

The  2^hiintiff,  liu^dng  duly  caused  an  appearance  to  be 
entered  for  any  defendant,  is  entitled,  as  against  the  same 
defendant,  to  the  costs  of  and  incident  to  entering  such 
appearance,  whatever  may  be  the  event  of  the  suit ;  and 
such  costs  are  to  be  added  to  any  costs  which  the  plaintiff 
may  be  entitled  to  receive  from  such  defendant,  or  set  off 
against  any  costs  which  he  may  be  ordered  to  pay  to  such 
defendant;  but  payment  thereof  is  not  to  ]je  otherwise 
enforced  without  the  leave  of  the  coui't. 

Order  XXXVI. 
A  defendant,  notwithstanding  that  an  appearance  may 
have  been  entered  for  him  by  the  plaintiff,  may  afterwards 
enter  an  appearance  for  himself  in  the  ordinary  way ;  but 
such  appearance,  by  such  defendant,  is  not  to  affect  any 
proceeding  duly  taken,  or  any  right  acquired  by  the 
plaintiff  under  or  after  the  appearance  entered  by  him,  or 
prejudice  the  plaintiff's  riglit  to  be  allowed  the  costs  of 
the  first  appearance. 

Order  XXXVTI. 
No  party  is  to  enter  either  a  common  or  special  appear- 
ance under  the  26th  or  27th  of  the  orders  of  the  26th  of 
August,  1841,  after  the  expiration  of  twelve  days  from  the 
service  of  the  copy  of  the  bill,  without  first  obtaining  an 
order  of  the  court  for  that  purpose,  such  order  to  be 
obtained  on  notice  to  the  plaintiff,  and  to  be  granted,  if 
the  court  thinks  fit,  upon  such  terms  as  are  just;  and  any 
party  so  entering  such  common  or  special  appearance  is 
bound  by  all  the  proceedings  in  the  cause  prior  to  such 
appearance  being  entered,  unless  the  court  otherwise  directs. 


ENGLISH  ORDERS  OF  1845.  763 


Order  XXXVIII. 
No  order  is  to  be  made  for  referring  any  pleading  or 
other  matter  depending  Ix^.fore  tlie  court  for  scandal  or 
impei-tinence,  miless  exceptions  are  taken  in  writing  and 
signed  by  counsel,  descril)ingtlie  pai-ticular  passages  which 
are  alleged  to  be  scandalous  or  impertinent. 

Order  XXXIX. 
Wliere  any  person  or  party,  having  filed  exceptions  to 
any  pleading  or  other  matter  depending  before  the  court 
for  scandal,  and  any  party  having  filed  such  exceptions  for 
impertinence,  does  not  obtain  an  order  to  refer  the  same 
to  the  master  within  six  days  after  the  filing  thereof,  such 
exceptions  are  to  be  considered  as  abandoned,  and  the 
person  or  party  by  whom  such  exceptions  were  filed  Is  to 
pay  to  the  opposite  party,  such  costs  as  may  have  been 
incurred  by  such  party  in  respect  of  such  exceptions. 

Order  XL. 
Where  any  person  or  party,  having  obtained  an  order 
to  refer  exceptions  to  the  master  for  scandal,  and  any 
party  having  obtained  an  order  to  refer  such  exceptions  to 
the  master  for  impertinence,  does  not  obtain  the  master's 
report  thereon  within  fourteen  days  after  the  date  of  the 
order,  or  within  such  further  time  as  the  master  thinks  fit 
to  allow,  the  exceptions  and  the  order  referring  the  same 
are  to  be  considered  as  abandoned,  and  the  person  or  party 
by  A\liom  such  exceptions  were  filed  is  to  pay  to  the 
opposite  party  such  costs  as  may  have  been  incurred  by 
such  party,  in  respect  of  such  exceptions,  order  and 
reference. 


764  APPENDIX. 


Order  XLI. 
Upon  tlie  expiration  of  four  days  from  the  filing  of  the 
master's  report  that  any  pleading  or  other  matter  depend- 
ing before  the  court  is  scandalous  or  impertinent,  the  officer 
having  the  custody  or  charge  of  such  pleading  or  other 
matter  is,  upon  production  to  him  of  an  office  copy  of  the 
master's  report,  and  a  certificate  that  no  exception  thereto 
was  filed,  or  an  affidavit  that  no  order  to  set  down  any  such 
exception  was  served  within  four  days  after  the  filing 
thereof,  to  expunge  from  such  pleading  or  other  matter, 
such  parts  thereof  as  the  master  has  found  to  be  scanda- 
lous or  impertinent,  and  thereupon,  the  person  or  party 
requuing  such  scandalous  or  impertinent  matter  to  be 
expunged,  is  to  pay  to  the  officer  expunging  the  same,  the 
same  fee  as  on  the  like  occasion  has  heretofore  been  paid 
to  the  master. 

Order  XLII. 
The  master  having  found  any  pleading  or  matter  de- 
pending before  the  court  to  be  or  not  to  be  scandalous  or 
impertinent,  is  to  direct  by  whom  the  costs  of  and  conse- 
quent upon  the  reference  are  to  be  paid. 

Order  XLIII. 
All   commissions   to    take    answers    are   to   be    made 
returnable  without  delay;  and  a  defendant  in  a  country 
cause  is  not  to  be  permitted  to  crave  the  common  dedimus. 

Order  XLIV. 
A  demurrer  or  plea  need   not   be   entered   with   the 
registrar;   but  upon  the  filing  thereof  by  a  defendant, 


ENGLISH  ORDERS  OF  1845.  765 

either  party  is  to  be  at  libei-ty  to  set  the  same  down  for 
argument  immediately. 

Order  XLV. 
Wliere  a  demurrer  to  the  whole  or  part  of  a  T)ill  is 
alloAved  upon  argument,  the  plaintiff,  unless  the  court 
orders  to  the  contrary,  is  to  pay  to  the  demurnng  party 
the  costs  of  the  demurrer,  and  if  the  demurrer  be  to  the 
whole  bill  the  costs  of  the  suit  also. 

Order  XL VI. 
Where  a  demuri'er  to  the  whole  bill  is  not  set  down  for 
argument  's\dthin  twelve  days  after  the  filing  thereof,  and 
the  plaintiff  does  not,  within  such  twelve  days,  serve  an 
order  for  leave  to  amend  the  bill,  the  demurrer  is  to  be 
helcf  sufficient,  to  the  same  extent  and  for  the  same  pur- 
poses, and  the  plaintiff  is  to  pay  to  the  demurring  party 
the  same  costs,  as  in  the  case  of  a  demurrer  to  the  whole 
bill  allowed  upon  argument. 

Order  XLVII. 
Where  a  demurrer  to  part  of  a  bill  is  not  set  down  for 
argument  within  three  weeks  after  the  filing  thereof,  and 
the  plaintiff  does  not,  within  such  three  weeks,  serve  an 
order  for  leave  to  amend  the  bill,  the  demurrer  is  to  be 
held  sufficient,  to  the  same  extent,  and  for  the  same  pur- 
poses, and  the  plaintiff  is  to  pay  to  the  demurring  paily 
the  same  costs,  as  in  the  case  of  a  demm-rer  to  part  of  a 
bill  allowed  ujx^n  argument. 

Order  XL VIII. 
Where  a  plea  to  the  whole  or  part  of  a  bill  is  allowed 
upon  argument,  the  plaintiff,  unless  he  undertakes  to  reply 


766  APPENDIX. 


to  tlie  plea,  or  tlie  court  orders  to  tlie  contrary,  is  to  pay 
to  tlie  party  by  wlioui  tlie  plea  is  filed  tlie  costs  of  the 
plea,  and  if  tlie  plea  be  to  the  whole  bill,  the  costs  of  the 
suit  also;  and  in  such  last  mentioned  case,  the  order 
allowing  the  plea  is  to  direct  the  disndssal  of  the  bill. 

OllDEU  XLIX. 

AVhere  a  plea  to  the  whole  or  part  of  a  bill  is  not  set 
down  for  argument  .within  three  weeks  after  the  filing 
thereof,  and  the  plaintiff  does  not,  within  such  three  weeks, 
serve  an  order  for  leave  to  amend  the  bill,  or  does  not, 
within  such  three  weeks,  by  notice  in  writing,  undertake 
to  reply  to  the  plea,  the  plea  is  to  be  held  good,  to  the 
same  extent,  and  for  the  same  purposes,  and  the  same  costs 
are  to  be  paid  by  the  plaintiff,  as  in  the  case  of  a  plea  to 
the  whole  or  j)art  of  a  bill  allowed  upon  argument ;  and 
where  the  plea  is  to  the  whole  bill,  the  defendant  by  whom 
such  plea  was  filed,  may,  at  any  time  after  the  expiration 
of  such  thi'ee  weeks,  obtain  as  of  course  an  order  to  dismiss 
the  bill. 

Order  L. 
The  plaintiff  havmg  undertaken  to  reply  to  a  plea  to 
the  whole  bill,  is  not,  without  the  special  leave  of  the  court, 
to  take  any  proceeding  against  the  defendant  by  whom 
the  plea  was  filed  till  after  replication. 

Order  LI. 

A  defendant  whose  answer  is  excepted  to  or  referred 
back  on  former  exceptions,  alleging  that  the  plaintiff  is 
prosecuting  him  in  this  court  and  also  at  law  for  the  same 


ENGLISH  ORDERS  OF  1845.  767 

matter,  may,  by  notice  in  writing,  require  the  plaintiff  to 
procure  tlie  master's  report  on  tlie  exceptions  witliin  four 
days  after  tlie  service  of  sucli  notice ;  and  if  the  plaintiff 
does  not  procure  the  master's  report  in  four  days  accord- 
ingly, or  if  the  exceptions  be  not  allowed,  such  defendant 
may  obtain,  as  of  course,  on  motion  or  petition,  the  usual 
order  for  the  plaintiff*  to  elect  in  which  court  he  will 
proceed,  with  the  usual  directions;  but  the  plauitiff*  may 
move  to  discharge  such  order  on  the  merits  confessed  in 
the  answer. 

Order  LII. 

After  the  expiration  of  the  time  allowed  to  a  defendant 
to  plead,  answer,  or  demur  (not  demurring  alone)  to  any 
original  or  supplemental  Ijill  or  bill  amended  before 
answer,  if  such  defendant  has  filed  no  plea,  answer,  or 
demurrer,  the  plaintiff"  ma)'  file  a  note  at  the  record  and  writ 
clerk's  office  to  the  following  effect :  "  The  plaintiff  intends 
to  proceed  with  his  cause  as  if  the  defendant  had  filed  an 
answer  traversing  the  case  made  by  the  bill." 

Order  LIII. 

After  the  expiration  of  the  time  allowed  to  plead,  answer, 
or  demur,  not  demurring  alone,  to  a  bill  amended  after 
answer,  the  ]>laintiff  (if  a  defendant  has  not  filed  any  plea, 
answer,  or  demurrer)  may  file  a  note  at  the  record  and 
writ  clerk's  office  to  the  folloAving  effect :  "  The  plaintiff* 
intends  to  proceed  with  his  cause,  as  if  the  defendant  had 
filed  an  answer  traversing  the  allegations  introduced  into 
the  bill  by  the  amendment." 


768  APrENDIX. 


Order  LIV. 

After  the  expiration  of  the  time  allowed  to  a  defendant 
to  put  in  liis  further  answer  to  any  bill,  the  plaintiff  (if 
such  defendant  shall  not  have  put  in  any  further  answer) 
may  file  a  note  at  the  record  and  writ  clerk's  office  to  the 
followuig  effect:  "The  2)laintiff  intends  to  proceed  with 
his  cause,  as  if  the  defendant  h;',d  filed  a  f mother  answer 
traversing  the  allegations  in  the  bill  whereon  the  excep- 
tions are  founded." 

Order  LV. 

Wliere  a  demurrer  or  plea  to  the  whole  bill  is  overruled, 
the  plaintiff,  if  he  does  not  require  an  answer,  may  imme- 
diately file  his  note  in  manner  directed  by  Orders  LII.  or 
LIII.,  as  the  case  may  require,  and  with  the  same  effect, 
unless  the  court,  upon  overruling  such  demurrer  or  plea, 
gives  time  to  the  defendant  to  plead,  answer,  or  demur ; 
and  in  such  case,  if  the  defendant  files  no  plea,  answer,  or 
demurrer  within  the  time  so  allowed  by  the  court,  the 
plaintiff,  if  he  does  not  then  require  an  answer,  may  on  the 
expiration  t)f  such  time  file  such  note. 

Order  LVI. 
A  traversing  note  having  been  filed,  a  copy  thereof  is  to 
be  served  on  the  defendant  against  whom  the  same  is  filed, 
in  the  manner  directed  by  the  nineteenth  and  twenty-first 
of  the  orders  of  the  26th  of  October,  1842,  for  the  service 
of  documents  not  requiring  personal  service. 

Order  LVII. 
A  traversing  note  being  filed,  and  a  copy  thereof  duly 
served,  is  to  have  the  same  effect,  as  if  a  defendant  had 


ENGLISH  ORDERS  OF  1845.  759 


filed  a  full  answer  or  further  answer,  traversing  the  wliole 
bill,  or  such  parts  of  the  bill  as  the  note  relates  to,  on  the 
day  on  which  the  note  was  filed. 

Order  LVIII. 
After  the  service  of  the  copy  of  a  traversing  note  filed 
as  aforesaid,  a  defendant  is  not  at  liberty  to  plead,  answer 
or  demur  to  a  bill  or  to  put  in  any  further  answer  thereto, 
without  the  special  leave  of  the  court,  and  the  cause  is  to 
stand  in  the  same  situation  as  if  such  defendant  had  filed 
a  full  answer,  or  further  answer  to  the  bill  on  the  day  on 
which  the  note  was  filed. 

Order  LIX. 
The  plaintiff  in  a  bill  praying  an  injunction  to  stay 
proceedings  at  law  is  entitled,  as  of  course,  on  motion  or 
petition,  and  without  an  attachment,  to  the  common 
injunction  for  want  of  appearance,  if  a  defendant  has  not 
appeared,  in  pei-son  or  by  his  own  solicitor,  on  or  after  the 
expiration  of  eight  days  from  the  service  of  the  subpcena, 
and  for  want  of  answer,  if  a  defendant  is  in  defiiult  for 
want  of  answer,  on  or  after  the  expiration  of  eight  days 
from  the  day  on  which  an  appearance  was  entered  by  or 
for  him. 

Order  LX. 
The  plaintiff  in  an  injunction  cause  having  obtained  the 
common  injunction  to  stay  proceedings  at  law,  may  (either 
before  or  after  the  answer  of  a  defendant  is  put  in,  and 
whether  such  injunction  be  or  be  not  continued  to  the 
hearing  of  the  cause)  ol)tain  one  order,  tis  of  course,  to 
amend  his  l)ill  without  prejudice  to  the  injunction  ;  and  if 
49 


770  APPENDIX. 


such  bill  he  amended  piu-suant  to  siicli  order,  sucli  defendant 
may,  thereupon  and  altliongli  he  may  not  have  put  in  his 
answer  to  such  bill  or  the  amendments  thereof,  move  the 
court,  on  notice,  to  dissolve  the  injunction,  on  the  ground 
that  such  l)ill  as  amended  does  not,  even  if  the  amendments 
be  true,  entitle  the  plaintiff  thereto. 

Order  LXI. 
The  plaintiff  in  a  bill  of  revivor,  or  of  revivor  and  sup- 
plement, is  entitled  as  of  course,  upon  motion  or  petition, 
to  the  common  order  to  revive,  if  a  defendant,  having 
appeared  in  person  or  by  his  own  solicitor,  does  not,  within 
eight  days  after  such  appearance,  plead  or  demur  to  the 
whole  bill,  or  to  so  much  thereof  as  prays  the  revivor. 

Order  LXII. 
If  the  plaintiff  in  a  bill  of  revivor  or  of  revivor  and 
supplement,  has  caused  an  appearance  thereto  to  be  entered 
for  any  defendant  against  whom  it  is  sought  to  revive  the 
suit,  and  such  defendant  does  not,  withm  eight  days  after 
such  appearance,  plead  or  demur  to  the  whole  bill,  or  to 
so  much  thereof  as  prays  the  revivor,  the  court  may,  if  it 
thinks  fit,  make  the  common  order  to  revive,  upon  motion ; 
such  motion  being  made  on  notice  to  be  served  on  such 
defendant  as  other  notices  of  motion,  if  such  defendant  was 
a  party  to  the  suit  at  the  time  of  the  abatement  thereof; 
but  if  such  defendant  was  not  a  party  to  the  suit  at  such 
time,  then  such  motion  is  to  be  made  on  notice  served  on 
such  defendant  personally,  unless  it  appears  on  affidavit, 
that  the  plaintiff*  is  unable  or  ought  not  to  be  bound  to 
serve  such  notice  personally,  by  reason  of  such  defendant 
being  out  of  the  jurisdiction,  or  being  concealed,  or  for 


ENGLISH  OUDEU8  OF  1845.  771 


any  otlier  cause;  and  it"  it  a])])eai's  to  the  court  that  tlie 
pLiintilV  can  not,  or  ought  not  to  Le  bound  to  serve  Huch 
notic(;  |)crs(^nally,  then  uj)on  notice  otherwise  served  or 
pul)lislied  as  the  court  may  direct. 

Order  LXIII. 
In  cases  where  a  suit  abates  by  the  deatli  of  a  sole 
plaintiff,  the  coui't,  upon  motion  of  any  defendant  made  on 
notice  served  on  the  legal  representative  of  the  deceased 
j)laintift*  may  order  that  such  legal  representative  do  revive 
the  suit  wthin  a  limited  time,  or  that  tbe  bill  be  dismissed. 

Order  LXIV. 
An  order  for  leave  to  amend  a  bill  may  be  obtained,  at 
any  time  before  answer,  upon  motion  or  petition,  without 
notice. 

Order  LXV. 
An  order  for  leave  to  amend  a  bill,  only  for  the  purpose 
of  rectifying  some  clerical  error  in  names,  dates  or  sums, 
may  be  obtained  at  any  time,  upon  motion  or  petition, 
without  notice. 

Order  LXVI. 
One  order  of  course  for  leave  to  amend  a  bill,  as  the 
plaintiff  may  l)e  advised,  may  be  obtained  by  the  i)hiintiil^ 
at  any  time  before  filing  (or  undertaking  to  file)  a  re})li- 
cation,  and  witbin  four  weeks  after  tbe  answer,  or  t lie  last 
of  several  answers,  is  to  be  deemed  sufficient;  but  no 
further  order  of  course  for  leave  to  amend  a  bill  is  to  be 
granted  after  an  ansAver  lias  been  filed,  unless  in  the  case 
provided  for  by  Order  LXV. 


772  APPENDIX. 


Order  LXVII. 
A  special  order  for  leave  to  amend  a  1)ill  is  not  to  be 
granted  without  affidavit,  to  the  effect,  first,  that  the  draft 
of  the  proposed  amendments  has  been  settled,  approved, 
and  signed  by  counsel ;  and  second,  that  such  amendment 
is  not  intended  for  the  purpose  of  delay  or  vexation,  but 
because  the  same  is  considered  to  be  material  for  the  case 
of  the  plaintiiJ'. 

Order  LXVIII. 
After  the  plaintiff  has  filed  or  undertaken  to  file  a  repli- 
cation, or  after  the  expiration  of  four  weeks  from  the  time 
when  the  answer  or  last  answer  is  deemed  sufficient,  a 
special  order  for  leave  to  amend  a  bill  is  not  to  be  granted, 
without  further  affidavit  showing  that  the  matter  of  the 
proposed  amendment  is  material,  and  could  not,  with 
reasonable  diligence,  have  been  sooner  introduced  into 
such  bill. 

Order  LXIX. 
Such  affidavits  as  are  mentioned  in  Orders  LXVII.  and 
LXVIII.  are  to  be  made  l)y  the  plaintiff  and  his  solicitor, 
or  by  the  solicitor  alone  in  case  the  plaintiff,  from  being 
abroad  or  otherwise,  is  unable  to  join  therein. 

Order  LXX. 
Where  the  plaintiff  obtains  an  order  for  leave  to  amend 
his  bill,  and  does  not  amend  the  same  within  the  time 
limited  for  that  purpose,  the  order  to  amend  becomes  void, 
and  the  cause,  as  to  dismissal,  stands  in  the  same  situation 
as  if  such  order  had  not  been  made. 


ENGLISH  ORDERS  OF  1845.  773 

Order  LXXI. 
A\niere  tlie  plaintiff  amends  his  Lill  without  requiring 
an  answer  to  the  amendments,  no  warrant  for  time  to 
answer  such  amendments  is  to  be  granted  after  tlie  expi- 
ration of  eiglit  days  from  the  service  of  the  notice  of  the 
amendment  of  tlie  bill. 

Order  LXXII. 
If  there  is  just  reason  to  believe  that  any  defendant 
means  to  abscond  before  answering  the  bill,  the  court  may, 
on  the  ex  parte  application  of  the  plaintiff,  at  any  time 
after  appearance  has  been  entered  for  such  defendant  by 
the  plaintiff*  order  an  attachment  for  want  of  answer  to 
issue  airainst  him;  and  such  attachment  is  to  be  made 
returnable  at  such  time  as  the  court  directs. 

Order  LXXIII. 
If  any  defendant,  being  in  custody  of  the  sergeant-at- 
arms,  or  of  a  messenger  under  an  attachment  for  want  of 
his  answer,  is  not  brought  to  the  l)ar  of  the  court  within 
ten  days  after  he  was  taken  into  custody,  he  is  to  be 
discharged  out  of  custody  by  the  sergeant-at-arms  or 
messenger  in  whose  custody  he  is,  without  payment  by 
him  of  the  costs  of  his  contempt,  which  in  such  case  are  to 
be  paid  by  the  plaintiff ;  but  if  such  defendant  does  not 
put  in  his  answer  within  eight  days  after  such  discharge, 
the  phiintiff  may  cause  a  new  attachment  to  be  issued 
against  liim  for  the  want  of  liis  answer. 

Order  LXXIV. 
If  any  defendant  be  in  prison  under,  or  being  already  in 
prison,  be  detained  under  an  attachment  for  not  answering, 


774  APPENDIX. 


and  be  not  brought  to  the  bar  of  tlie  court  within  thirty 
days  fi'om  the  time  of  his  being  actually  in  custody  or 
detained  (being  already  in  custody  under  such  attachment,) 
he  is  to  be  discharged  from  the  process  for  want  of  answer 
under  which  he  was  arrested  or  detained,  by  the  sheriff, 
jailer,  or  keeper  of  the  jail  in  whose  custody  he  is,  without 
payment  of  the  costs  of  his  contempt,  which  in  such  case 
are  to  be  paid  by  the  plaintiff;  but  if  such  defendant  does 
not  put  m  his  answer  within  eight  days  after  such  discharge, 
the  plaintiff  may  cause  a  new  attachment  to  be  issued 
asrainst  him  for  want  of  his  answer. 

Order  LXXV. 
A  defendant  being  brought  up  in  custody  for  want  of 
his  answer,  and  maldng  oatli  in  court  that  he  is  unable,  by 
reason  of  poverty,  to  employ  a  solicitor  to  j)ut  in  his 
answer,  the  court  is  thereupon  to  refer  it  to  the  master  to 
inquire  into  the  truth  of  that  allegation,  and  to  report 
thereon  to  the  court  forthwith ;  and  tlie  court  may  appoint 
a  solicitor  to  conduct  such  inquiry  on  the  behalf  of  such 
defendant ;  and  if  the  master  reports  such  defendant  to  be 
unable,  by  reason  of  poverty,  to  employ  a  solicitor  to  put 
in  his  answer,  the  court  may  assign  a  sohcitor  and  counsel 
for  such  defendant  to  enable  him  to  put  in  his  answer. 

Order  LXXVI. 
Upon  the  execution  of  an  attachment  for  want  of  answer 
against  any  defendant,  or  at  any  time  within  three  weeks 
afterwards,  the  plaintiff  may  cause  such  defendant  to  be 
served  with  a  notice  of  motion  to  be  made  on  some  day 
not  less  than  three  weeks  after  the  day  of  such  service, 
that  the  bill   may  be  taken  pro  confesso   against   such 


ENGLISH  ORDERS  OF  1845.  775 

defendant;  and  tlierenjx)!!,  unless  such  defendant  has,  in 
the  mean  time,  ])ut  in  his  answer  to  the  Itill  or  obtained 
fui-tlier  time  to  answer  the  same,  the  court,  if  it  so  thinks 
fit,  may  order  tlie  hill  to  be  taken  pro  confemo  against 
such  defendant,  either  immediately  or  at  such  time,  and 
upon  such  terms,  and  suliject  to  sucli  conditions,  as,  under 
the  circumstances  of  the  case,  the  coui-t  thinks  proper. 

Order  LXXVII. 
In  cases  where  any  defendant,  either  being  or  not  being 
witliin  tlie  jurisdiction  of  tlie  court,  does  not  put  in  liis 
answer  in  due  time  after  ap])earanee  entered  by  or  for 
him,  and  the  plaintiff  is  unable,  with  due  diligence,  to 
procure  a  writ  of  attachment  or  any  subsequent  process 
for  want  of  answer  to  be  executed  against  such  defendant, 
by  reason  of  his  being  out  of  the  jurisdiction  of  the  court, 
or  being  concealed,  or  for  any  other  cause,  then  such 
defendant  is,  for  the  purpose  of  enabling  the  plaintiff  to 
oT)tain  an  order  to  take  the  bill^j);'6>  confe-sso^  to  be  deemed 
to  have  absconded  to  avoid,  or  to  have  ^refused  to  obey 
the  process  of  the  court. 

Order  LXXVIII. 
In  cases  where  any  defendant  who,  under  Order 
LXXVII.,  may  be  deemed  to  have  absconded  to  avoid, 
or  to  have  refused  to  ol>ey  the  process  of  the  court,  has 
appeared  in  person  or  by  his  own  solicitor,  the  plaintiff* 
may  serve  upon  such  defendant  or  his  solicitor  a  notice, 
that  on  a  day  in  such  notice  named  (being  not  less  than 
fourteen  days  after  the  ser\dce  of  such  notice)  the  court 
will  be  moved  that  the  bill  may  be  taken  pro  confesso 
agamst  such  defendant;    and  the  plaintiff*  is,  upon   the 


776  APPENDIX. 


hearing  of  sneli  motion,  to  satisfy  the  court,  that  such 
defendant  ought,  under  the  provisions  of  order  LXXVII., 
to  1)0  deemed  to  have  absconded  to  avoid,  or  have  refused 
to  obey  the  process  of  the  court ;  and  the  court  being  so 
satisfied  and  the  answer  not  being  filed,  may,  if  it  so  thinks 
fit,  order  the  bill  to  be  taken  pro  confesso  against  such 
defendant,  either  immediately  or  at  such  time  or  upon 
such  further  notice  as,  under  the  circumstances  of  the  case, 
the  coui-t  may  think  proper. 

Order  LXXIX. 
In  cases  where  any  defendant  who,  under  Order 
LXXVIL,  may  be  deemed  to  have  absconded  to  avoid, 
or  to  have  refused  to  obey  the  process  of  the  court,  has 
had  an  appearance  entered  for  him  under  Orders  XXIX., 
XXXL,  or  XXXIII.,  and  has  not  afterwards  appeared  in 
person  or  by  his  own  solicitor,  the  plaintiff  may  cause  to 
be  inserted  in  the  London  Gazette  a  notice,  that  on  a  day 
in  such  notice  named  (being  not  less  than  four  weeks  after 
the  first  insertioji  of  such  notice  in  the  London  Gazette) 
the  court  will  be  moved  that  the  bill  may  be  taken  j9ro 
confesso  against  such  defendant ;  and  the  plaintiff  is,  upon 
the  hearing  of  such  motion,  to  satisfy  the  court  that  such 
defendant  ought,  under  the  provisions  of  Order  LXXVIL, 
to  be  deemed  to  have  absconded  to  avoid,  or  to  have 
refused  to  obey  the  process  of  the  court,  and  that  such 
notice  of  motion  has  been  inserted  in  the  London  Gazette, 
at  least  once  in  every  week  from  the  time  of  the  first 
insei-tion  thereof  up  to  the  time  for  which  the  said  notice 
is  given ;  and  the  court,  being  so  satisfied  and  the  answer 
not  having  been  filed,  may,  if  it  so  thinks  fit,  order  the  bill 
to  be  taken  pro  confesso  against  such   defendant,  either 


ENGLISH  ORDERS  OF  1845.  777 


immediately  or  at  sucli  tiiiK;  oi-  upon  siicli  furtlier  notice 
as,  uikIci'  tlic  circumstances  of  the  case,  the  court  may- 
think  ])ro])er. 

Order  LXXX. 
Any  (lefen(hint  being  in  custody  for  want  of  his  answer, 
and  submitting  to  have  tlie  bill  taken  pro  coiifesfio  against 
him,  may  apply  to  the  court,  upon  motion  with  notice  to 
be  served  on  the  plaintiff,  to  be  discharged  out  of  custody ; 
and  thereupon  the  court  may  order  the  bill  to  be  taken 
pro  co)ife-s-so  against  such  defendant,  and  may  order  him  to 
be  discharged  out  of  custody  uj)on  such  terms  as  ap])ear  to 
be  just,  unless  it  appears,  from  the  nature  of  the  j)laiutiff''s 
case  or  otherwise,  to  the  satisfaction  of  the  court  that 
justice  can  not  be  done  to  the  plaintiff  without  discovery 
or  further  discovery  from  such  defendant. 

Order  LXXXI. 
No  cause,  in  which  an  order  is  made  that  a  bill  be  taken 
pro  confe-sso  against  a  defendant,  is  to  be  heard  on  the 
same  day  on  which  the  order  is  made ;  but  the  cause  is  to 
be  set  down  to  be  heard,  and  the  court,  if  it  so  thinl-cs  fit, 
may  appoint  a  special  day  for  the  hearing  thereof. 

Order  LXXXII. 
A  defendant  against  whom  an  order  to  take  a  bill  j^^'o 
confes-so  is  made,  is  at  liberty  to  a})pear  at  the  heai'ing  of 
the  cause ;  and  if  he  waives  all  objections  to  the  order,  but 
not  otherwise,  he  may  be  beard  to  argue  the  case  upon  the 
merits  as  stated  in  the  bill. 


778  APPENDIX. 


Order  LXXXIII. 
Upon  the  hearing  of  a  cause  in  which  a  bill  has  been 
ordered  to  be  taken  'pro  confesso^  such  decree  is  to  be 
made  as  to  the  court  seems  just;  and  in  the  case  of  any 
defendant  who  has  appeared  at  the  hearing  and  waived 
all  objection  to  such  order  to  take  the  hiWpro  confesso^  or 
against  whom  the  order  has  been  made  after  appearance 
by  humself  or  his  own  solicitor,  or  upon  notice  served  on 
or  after  the  execution  of  a  writ  of  attachment  against  him, 
the  decree  is  to  be  absolute. 

Order  LXXXIV. 
In  pronouncing  the  decree,  the  court  may,  either  upon 
tLe  case  stated  in  the  bill,  or  upon  that  case  and  a  j)etition 
presented  by  the  plaintiff  for  the  purpose,  as  the  case  may 
require,  order  a  receiver  of  the  real  and  personal  estate  of 
the  defendant  against  whom  the  l)ill  has  been  ordered  to 
be  taken  p^o  confesso  to  be  appointed,  with  the  usual 
directions,  or  direct  a  sequestration  of  such  real  and  per- 
sonal estate  to  be  issued,  and  may  (if  it  appears  to  be  just) 
direct  payment  to  be  made  out  of  such  real  or  personal 
estate,  of  such  sum  or  sums  of  money  as,  at  the  hearing  or 
any  subsequent  stage  of  the  cause,  the  plaintiff  appears  to 
be  entitled  to ;  provided  that  unless  the  decree  be  abso- 
lute, such  payment  is  not  to  be  directed  without  security 
being  given  by  the  plaintiff  for  restitution,  if  the  court 
afterwards  thinks  fit  to  order  restitution  to  be  made. 

Order  LXXXV. 
A  decree  founded  on  a  bill  taken  pro  confesso  is  to  be 
passed  and  entered  as  other  decrees. 


ENGLISH  ORDERS  OF  1S45.  779 

Order  LXXXVI. 
After  a  decree  founded  on  a  1)111  taken  ^>;'0  rovfe-^so  has 
been  passed  and  entered,  an  office  copy  thereof  is  (unless 
the  coui-t  dispenses  with  ser^^ce  thereof)  to  Ije  served  on 
the  defendant,  against  whom  the  order  to  take  the  M\\\  ^yro 
coiifesso  was  made,  or  his  solicitor;  and  if  the  decree  be 
not  absolute  under  Order  LXXXIIL,  each  defendant  or 
his  solicitor  is  to  be,  at  the  same  time,  served  ^dtli  a 
notice,  to  the  effect,  that  if  such  defendant  desires  per- 
mission to  answer  the  plaintiff's  bill  and  set  aside  the 
decree,  application  for  that  purpose  must  be  made  to  the 
court  within  the  time  specified  in  the  notice,  or  that  such 
defendant  will  be  absolutely  excluded  from  making  any 
such  application. 

Order  LXXXVII. 
If  such  notice  as  is  mentioned  in  Order  LXXXVI.  is  to 
be  served  within  the  jurisdiction  of  the  court,  the  time 
therein  specified  for  such  application  to  be  made  by  the 
defendant  is  to  be  three  weeks  after  service  of  such  notice ; 
but  if  such  notice  is  to  be  served  out  of  the  jurisdiction  of 
the  court,  such  time  is  to  be  specially  appointed  by  the 
court,  on  the  ex;pavte  application  of  the  plaintiff. 

Order  LXXXVIII. 
No  proceeding  is  to  be  taken,  and  no  receiver  appointed 
under  the  decree  nor  any  sequestrator  under  any  seques- 
tration issued  in  pursuance  thereof  is  to  take  possession  of, 
or  in  any  manner  intermeddle  with,  any  part  of  the  real 
or  personal  estate  of  a  defendant,  and  no  other  2)rocess  is 
to  issue   to  compel  performance  of  the   decree,  without 


780  APPENDIX. 


leave  of  the  court,  wliicli  is  to  be  obtained  on  motion  with 
notice  served  on  such  defendant  or  his  solicitor,  unless  the 
court  dispenses  with  such  service. 

Order  LXXXTX. 
Any  defendant  waiving  all  objection  to  the  order  to 
take  the  bill  pro  coiifesso^  and  submitting  to  pay  such  costs 
as  the  court  may  direct,  may,  before  enrolment  of  the 
decree,  have  the  cause  reheard  upon  the  merits  stated  in 
the  bill,  the  petition  for  rehearing  being  signed  by  counsel 
as  other  petitions  for  rehearing. 

Order  XC. 
In  cases  where  a  decree  is  not  absolute  under  Order 
LXXXIIL,  the  court  may  order  the  same  to  be  made 
absolute  on  the  motion  of  the  plaintiff,  made, 

1 .  After  the  expiration  of  three  weeks  from  the  service  of 

a  copy  of  the  decree  on  a  defendant,  where  the  decree 
has  been  served  within  the  jurisdiction. 

2.  After  the  expiration  of  the  time  limited  by  the  notice 

provided  for  by  order  LXXXVI.,  where  the  decree 
has  been  served  without  the  jurisdiction. 

3.  After  the  exjiiration  of  three  years  from  the  date  of  the 

decree,  where  a  defendant  has  not  been  served  with  a 

copy  thereof 
And  such  order  may  be  made  either  on  the  first  hearing 
of  sucli  motion,  or  on  the  expiration  of  any  further  time 
which  the  court  may,  on  the  hearing  of  such  motion,  allow 
to  the  defendant  for  presenting  a  petition  for  leave  to 
answer  the  bill. 


ENGLISH  ORDERS  OF  1845.  781 

Order  XCI. 
Where  the  decree  is  not  absohite  under  Order  LXXXIIL, 
and  has  not  been  made  absolute  under  Order  XC,  and  a 
defendant  lias  a  ca^e  upon  merits  not  appearinii;  in  the  bill, 
he  may  .i])ply  to  the  court  by  petition  stating  such  case, 
and  submitting  to  such  terms  with  respect  to  costs  and 
otherwise  as  the  court  may  think  reasonable,  for  leave  to 
answer  the  bill ;  and  the  court,  being  satisfied  that  such 
case  is  proper  to  l)e  submitted  to  the  judgment  of  the* 
court,  may,  if  it  thinks  fit,  and  upon  such  terms  as  seem 
just,  vacate  the  enrolment  (if  any)  of  the  decree,  and  permit 
such  defendant  to  answer  the  bill ;  and  if  permission  be 
given  to  such  defendant  to  answer  the  bill,  leave  may  be 
given  to  file  a  separate  replication  to  such  answer,  and 
issue  may  be  joined,  and  witnesses  examined,  and  such 
proceedings  had  as  if  the  decree  had  not  been  made,  and 
no  proceedings  against  such  defendant  had  been  had  in 
the  cause. 

Order  XCII. 
The  rights  and  liabilities  of  any  plaintiff  or  defendant 
under  a  decree  made  upon  a  bill  taken  fro  coiife-sso  extend 
to  the  representatives  of  any  deceased  plaintiff  or  defendant, 
and  to  any  persons  or  person  claiming  under  any  person 
who  was  plaintiff  or  defendant  at  the  time  when  the  decree 
was  pronounced ;  and  with  reference  to  the  altered  state 
of  parties  and  any  new  interests  acquired,  the  court  may, 
upon  motion  or  petition  served  in  such  manner,  and  sup- 
ported by  such  evidence  as  under  the  circumstances  of  the 
case  the  court  deems  sufficient,  permit  any  party,  or  the 
representative  of  any  party,  to  file  such  bill  or  bills,  or 
adopt  such  proceedings  as  the  nature  and  circumstances  of 


782  APPENDIX. 


tlie  case  require,  for  tlie  purpose  of  having  the  decree  (if 
absolute)  duly  executed,  or  for  tlie  purpose  of  ha\diig  the 
matter  of  the  decree  (if  not  absolute)  duly  considered,  and 
the  rights  of  the  parties  duly  ascertained  and  determined. 

Order  XCIII. 
No  subpoena  to  rejoin  is  hereafter  to  be  issued;  and 
only  one  replication  is  to  be  filed  in  each  cause,  unless  the 
.  Court  otherwise  orders ;  and  the  replication  is  to  be  in  the 
form  set  forth  at  the  foot  of  this  Order,  or  as  near  thereto 
as  circumstances  admit  and  require  ;  and  upon  the  filing 
of  such  replication,  the  cause  is  to  be  deemed  to  be  com- 
pletely at  issue;  and  each  defendant  may,  without  any 
rule  or  order,  proceed  to  examine  his  witnesses,  and  the 
plaintilf  may,  in  like  manner,  proceed  to  examine  his  wit- 
nesses so  soon  as  notice  of  the  replication  being  filed 
has  been  duly  served  on  all  the  defendants  who  have  filed 
an  answer  or  plea,  or  against  whom  a  traversing  note  has 
been  filed. 

Form  of  JReplication. 

"  Between  A.  B.  Plaintiff. 

"and 

"  C.  D.,  E.  F.,  G.  H.,  <fec.  Defendants. 

"The  plaintifl:*in  this  cause  hereby  joins  issue  with  the 
defendant  C.  D."  [all  the  defendants  who  have  answered  or 
pleaded^  or  against  whom  a  traversing  note  has  been  flled^ 
"  and  will  hear  the  cause  on  bill  and  answer  against  the 
defendant  E.  F. "  [aU  the  defendants  against  lohom  the 
cause  is  to  he  heard  on  hill  and  answer^  "and  on  the 
order  to  take  the  bill  as  confessed  against  the  defendant 
G.  II."  [cis  the  case  may  he.'\ 


ENGLISH  ORDERS  OF  1845.  783 

Order  XCIV. 
Commissions  to  examine  witnesses  within  the  jurisdiction 
of  the  Court  are  to  be  directed  to  two  commissionei's  only, 
and,  unless  the  coui*t  othei'wise  orders,  are  to  l>e  made 
returnable  without  delay;  and  the  commissionei-s  are  to 
be  either  barristers  or  solicitors  not  concerned  in  the  cause, 
and  each  one  of  such  two  commissioners  is  to  have  all  such 
power  and  authority  to  examine  witnesses,  as  have  hereto- 
fore been  vested  in  the  acting  commissioners  named  in  the 
commissions  to  examine  witnesses  which  have  heretofore 
been  issued;  but  the  commissioner  first  named  in  the 
commissions  to  be  hereafter  issued  is  alone  to  act  in  the 
execution  of  any  commission,  unless  he  is,  by  illness  or 
other  sufficient  cause,  incapacitated  from  acting  therein,  in 
which  case  the  commissioner  secondly  named  is  alone  to 
act  in  the  execution  of  such  commission. 

Order  XCV. 
Immediately  after  the  replication  is  filed,  the  pluintifi", 
if  he  thinks  fit,  may  give  notice  to  all  other  parties  entitled 
to  examine  witnesses  in  the  cause,  of  his  intention  to  sue 
out  a  commission  for  that  purpose ;  and  the  plaintifl^,  if  he 
gives  such  notice  within  two  days  after  the  filing  of  the 
replication,  or  before  any  defendant  has  given  notice  of 
his  intention  to  sue  out  a  commission,  is  to  have  the 
carria£!:e  of  the  commission. 

Order  XCVI. 

After  the  expiration  of  two  days  from  the  filing  of  the 

rej)lication,  if  the  plaintiff*  has  not  previously  given  notice 

to  all  other  parties  entitled  to  examine  witnesses  in  the 

cause  of  his  intention  to  sue  out  a  commission  for    that 


784  APPENDIX. 


purpose,  any  defendant  may  give  notice  to  all  the  other 
parties  entitled  to  examine  witnesses  in  the  same  cause,  of 
such  defendant's  intention  to  sue  out  a  commission  for  that 
purpose;  and  any  defendant  so  giving  such  notice  is  to 
have  the  carriage  of  the  commission,  unless  such  notice  be 
given  by  more  than  one  defendant,  in  which  case  the 
defendant  who  first  gave  such  notice  is  to  have  the  carriage 
of  the  commission. 

Order  XCVII. 
Where  the  parties  entitled  to  examine  witnesses  in  the 
cause  agree  to  the  nomination  of  persons  to  be  commission- 
ers, and  to  the  order  in  which  such  commissioners  are  to 
be  named,  the  record  and  wiit  clerk  upon  being  applied 
to  for  the  purpose,  is  to  cause  a  commission  directed  to 
such  persons  to  be  sealed  and  delivered  to  the  person 
entitled  to  have  the  carriage  thereof. 

Order  XCVIII. 
If  all  the  parties  entitled  to  examine  witnesses  in  the 
cause  have  not,  within  four  days  after  the  filing  of  the 
rej^lication,  agreed  to  the  nomination  of  persons  to  be 
commissioners,  any  party  entitled  to  examine  witnesses  in 
the  cause  may  apply  to  the  master  to  whom  any  former 
reference  in  the  cause  has  been  made,  or  to  the  master  in 
rotation  in  case  no  former  reference  has  been  made,  for  a 
warrant,  returnable  in  two  days  requiring  the  other  parties 
to  attend  for  the  purpose  of  having  commissioners  named ; 
and  such  master  is  to  grant  such  warrant,  and  the  same 
being  duly  served,  all  j)arties,  on  the  return  thereof,  are 
to  propose  commissioners ;  and  if,  among  the  persons  so 
proposed,  there  are  two  or  more  to  whom  no  just  objection 


ENGLISH  ORDERS  OF  1845.  785 


is  made,  the  master  is  to  select  or  nominate  and  certify  to 
be  commissionei*s  such  two  of  the  proposed  pei*sons  as 
ap})ear  to  him  most  proper  to  perform  the  duty ;  but  if  it 
api)ears  that  no  one  or  only  one  of  such  proposed  persons 
is  free  from  just  objection,  the  master,  as  the  case  may  be, 
is  to  nommate  and  certify  two  ])roper  persons,  or  to  nomi- 
nate one  proper  person  and  certify  him  and  the  person 
free  from  objection,  to  be  the  commissioners. 

Order  XCIX. 
If  any  question  arises  as  to  the  commissioner  who  is  to 
be  first  named,  or  as  to  the  party  who  is  to  have  the 
carriaere  of  the  commission,  the  master  is  to  determine  such 
question,  and  to  name  the  party  who  is  to  have  the 
carriage  of  the  commission. 

Order  C. 
If  any  party  entitled  to  examine  witnesses  in  a  cause 
shall  desire  to  liave  any  additional  commission  or  commis- 
sions, application  is  to  l)e  made  to  the  master  for  leave  to 
sue  out  such  additional  commission  or  commissions ;  and 
upon  the  master's  certificate  that  such  additional  commis- 
sion or  commissions  is  or  are  proper  to  be  issued,  the  same 
may  be  sued  out  in  the  same  manner  as  a  first  or  only 
commission;  and  in  Ciise  the  parties  do  not  agree,  any 
question  respecting  the  commissionei's  to  be  named  or  the 
order  in  which  they  are  to  be  named  in  the  commission, 
or  any  question  respecting  the  carriage  of  any  such 
additional  commission,  is  to  be  settled  by  the  master  as  in 
the  case  of  a  fii'st  or  only  commission. 


50 


786  APPENDIX. 


Order  CI. 
The  master  is  to  deliver  his  certificate  of  the  nomination 
of  the  commissioners  to  the  solicitor  of  the  party  who  is  to 
have  the  carriage  of  the  commission  ;  and  such  solicitor  is, 
on  the  same  day,  or  at  the  latest  on  the  day  next  following 
the  date  of  the  master's  certificate,  to  file  the  same,  and  is, 
within  two  days  from  the  date  thereof,  to  take  an  office 
copy  thereof  to  the  record  and  writ  clerk,  who  is,  on  the 
same  day  or  at  the  latest  on  the  day  next  following  his 
receipt  of  such  office  copy,  to  seal  a  commission  directed 
to  the  persons  named  in  the  certificate,  and  to  deliver  such 
commission  to  the  solicitor  from  whom  he  received  the 
certificate  ;  and  such  sohcitor  having  received  the  commis- 
sion is,  within  one  week  after  the  teste  thereof,  to  deliver 
the  same  to  the  commissioner  therein  first  named,  if  he  be 
at  the  time  able  to  act  in  the  execution  of  the  commission ; 
but  if  not  then,  to  the  commissioner  secondly  named. 

Order  CII. 
If  any  solicitor  having  the  carriage  of  a  commission  does 
not,  within  six  days  after  the  date  of  the  master's  certificate, 
obtain  the  commission,  and  duly  deliver  the  same  to  the 
commissioner  by  whom  the  same  is  to  be  executed,  any 
other  party  entitled  to  examine  witnesses  may  apply  to 
the  master  for  leave  to  take  out  a  new  commission  direct- 
ed to  the  same  commissioners,  and  to  have  the  carriage  of 
such  commission ;  and  the  costs  of  such  application  are  to 
be  paid  by  the  party  in  default,  whether  the  apphcation 
succeeds  or  not. 


ENGLISH  ORDERS  OF  1845.  787 

Form  of  Commission. 

Order  CIII. 

The  form  of  a  commission  to  be  hereafter  issued  for  the 
examination  of  witnesses  is  to  "be  as  follows,  with  such  (if 
any)  variations  as  the  circumstances  of  the  case  require : — 
"Victoria,  <fec. 

"To  A.  B.  and  C.  D.,  greeting : 
"  Know  ye,  that  we,  in  confidence  of  your  prudence 
and  fidelity,  have  appointed  you,  and  by  these  presents 
do  give  unto  each  of  you,  full  power  and  authority, 
diligently  to  examine  all  witnesses  whatsoever,  upon 
certain  interrogatories  to  be  exhibited  to  you  in  a  cause 
wherein  E.  F.  is  complainant  and  G.  H.  and  others  are 
defendants ;  and  therefore  we  command,  that  one  of 
you  do,  at  certain  days  and  places  to  be  a2:>pointed  for 
that  purpose,  cause  the  said  witnesses  to  come  before 
you,  and  then  and  there  examine  each  of  them,  apart, 
upon  the  said  interrogatories,  either  on  their  resj^ective 
corporal  oaths  fii^st  taken  before  you  upon  the  holy 
Evangelists,  or  in  the  case  of  quakers  upon  theii*  solemn 
affirmation  and  declaration,  or  m  such  other  solemn 
manner  as  is  or  may  be  authorized  by  law,  and  that 
you  do  take  such  their  examinations  and  reduce  them 
into  writing  on  parchment ;  and  when  you  shall  have 
so  taken  them,  you  are  to  send  the  same  to  us  in  our 
chancery  without  delay,  wheresoever  it  shall  then  l)e 
closed  up  and  under  your  seal,  distinctly  and  plainly  set 
together  with  the  said  interrogatories  and  this  writ. 
And  we  further  command  you,  that  before  you  act  in 
or  be  present  at  the  swearing  or  examinhig  any  Avitness 
or  witnesses  you  do  take  the  oath  fii-st  specified  in  the 


788  APPENDIX. 


schedule  lieremito  annexed.  And  we  further  command, 
that  all  and  every  the  clerk  or  clerks  employed  in 
taking,  writing,  transcribing,  or  engrossing  the  deposition 
or  depositions  of  witnesses  to  be  examined  by  virtue 
of  these  presents  shall,  before  he  or  they  be  permitted 
to  act  as  clerk  or  clerks  as  aforesaid,  or  be  present  at 
such  examination,  severally  take  the  oath  last  specified 
in  the  said  schedule  annexed ;  and  we  also  give  to  you 
full  power  and  authority  to  administer  such  oath  to  such 
clerk  or  clerks  in  manner  aforesaid.  Witness  ourself  at 
Westminster,  the  day  of  in  the 

year  of  our  reign. 

"  Langdale." 
(Endorsement.) 
"By  order  of  Court." 
(Name  and  address  of  agent  and  solicitor  issuing  writ.) 

Order  CIV. 
The  oath  to  be  taken  by  a  commissioner  is  to  be  set 
forth  in  a  schedule  annexed  to  the  commission,  and  is  to 
be  in  the  form  following,  viz : 

"  You  shall,  according  to  the  best  of  your  skill  and 
knowledge,  truly,  faithfully,  and  without  partiality  to 
any  or  either  of  the  parties  in  this  cause,  take  the  exami- 
nations and  depositions  of  all  and  every  witness  and 
witnesses,  produced  and  examined  by  virtue  of  the 
commission  hereunto  annexed,  upon  the  interrogatories 
produced  and  left  with  you ;  and  you  shall  not  pub- 
Hsh,  disclose,  or  make  known  to  any  person  or  persons 
whatsoever,  except  to  the  clerk  or  clerks  l)y  you  em- 
ployed and  sworn  to  secrecy  in  the  execution  of  this 


ENGLISH  ORDERS  OF  1845.  789 

commission,  tlie  contents  of  all  or  any  of  tlie  depositions 
of  the  witnesses,  or  any  of  tliem,  to  be  taken  by  you  ]>y 
virtue  of  the  said  commission,  until  publication  sliall 
pass  ])ursuant  to  some  general  or  special  order  of  the 
High  Court  of  Chancery. 

"  So  help  you  God." 

And  the  said  oath  is  to  be  taken  by  the  commissioner 
who  is  to  act  in  the  execution  of  the  commission  previoasly 
to  his  acting  therein,  before  any  master  in  ordinary  or 
before  any  master  extraordinary  of  the  court  who  is  not 
employed  or  concerned  in  the  cause,  and  such  master 
extraordinary  is  hereby  authorized  and  required  to  ad- 
minister such  oath. 

Order  CV. 
Tlie  oath  to  be  taken  by  the  clerk  or  clerks  employed 
in  taking,  writing,  transcribing,  or  engi'ossing  the  deposition 
or  depositions  of  witnesses  to  be  examined  Ijy  virtue  of 
a  commission,  is  to  be  set  forth  in  a  schedule  annexed  to 
the  commission,  and  is  to  be  in  the  form  foUowinsr,  ^nz : 

"  You  shall  truly  and  faithfully,  and  without  partiality 
to  any  or  either  of  the  parties  in  this  cause,  take  and 
write  down,  transcribe  and  engross,  the  depositions  of 
all  and  every  witness  and  witnesses  produced  before  and 
examined  by  either  of  the  commissioners  named  in  the 
commission  hereunto  annexed,  as  fiir  forth  as  you  are 
directed  and  employed  by  the  said  commissioner  to 
take,  Avrite  down,  or  engross  the  said  depositions  or  any 
of  them ;  and  you  shall  not  publish,  disclose,  or  make 
known  to  any  person  or  persons  whatsoever,  the  contents 
of  all  or  any  of  the  depositions  of  the  witnesses  or  any 


790  APPENDIX. 


of  tliem  to  be  taken,  written  down,  transcribed,  or 
engrossed  by  you,  or  whereto  you  shall  have  recourse, 
or  be  any  ways  privy,  until  publication  shall  pass  pur- 
suant to  some  general  or  sj)ecial  order  of  the  high  court 
of  chancery. 

"  So  help  you  God." 

And  the  said  oath  is  to  be  taken  before  the  actinir  com- 
missioner,  by  the  clerk  or  clerks  employed  as  aforesaid, 
before  he  or  they  be  permitted  to  act  as  such  clerk  or 
clerks,  or  to  be  present  at  the  examination  of  witnesses 
under  the  commission;  and  the  commissioner  is  hereby 
authorized  and  required  to  administer  the  said  oath  to 
such  clerk  or  clerks  accordingly. 

Order  CVI. 
The  commissioner  having  taken  such  oath  is,  at  the 
instance  of  any  party  entitled  to  examine  witnesses,  to 
sign  and  deliver  to  such  party  a  notice  in  writing  specifying 
the  time  and  place  when  and  where  he  will  proceed  to 
examine  witnesses,  and  such  notice  is  to  be  duly  served  by 
the  party  who  obtains  it  upon  the  solicitors  of  all  the 
other  parties  entitled  to  examine  witnesses  under  the 
commission,  and  in  case  any  such  party  has  no  solicitor, 
upon  such  party,  at  least  ten  clear  days  before  the  day 
therein  named  for  proceeding  to  examine  witnesses. 

Order  CVII. 
All  depositions  of  witnesses  are  to  be  taken  and   ex- 
pressed in  the  first  person  of  the  deponent. 


ENGLISH  ORDERS  OF  1845.  791 

Order  CVIII. 
If  the  examination  of  witnesses  can  not  he  completed  in 
one  clay,  and  tlie  circumstances  of  tlie  case  jjermit,  the 
commissioner  is  to  proceed  de  die  in  diem^  during  six  hours 
of  each  day  between  the  horn's  of  eight  in  the  morning  and 
six  in  the  afternoon,  until  the  witnesses  for  all  parties  are 
fully  examined ;  nevertheless,  the  commissioner  may,  if  in 
his   opinion   the   circumstances   of    the   Ciise   require   an 
adjournment,  adjourn  the  proceedings,  from  time  to  time 
and  from  place  to  place,  in  such  manner  as  lie  thinks 
proper ;  but  he  is  in  all  cases  to  enter  on  the  dej^ositions 
any  adjournment,  and,  where  such  adjournment  is  from 
place  to  place,  or  otherwise  than  de  die  in  diem^  the  cause 
or  reason  of  such  adjournment,  and  he  is  also  to  enter  on 
the  depositions  the  hours  of  the  day  on  which  he  com- 
mences and  concludes  the  examination  of  witnesses  on  each 
day,  and  the  true  cause  of  his  not  proceeding  for  the  full 
time  of  six  hom's  on  each  day,  if  such  should  be  the  case. 

Order  CIX. 
When  the  examination  of  witnesses  is  completed,  the 
commissioner  is   to   seal   up   the   depositions,  and   is   to 
transmit  the  same,  sealed  up  w4th  the  commission,  to  the 
record  and  writ  clerk's  office.  \ 

Order  CX. 
The  commissioner  is,  for  the  performance  of  his  duty  as 
such  commissioner,  entitled  to  receive  the  following  sums 
of  money;  viz: 

For  every  day  in  which  he  is,  necessarily  and 
without  any  default  of  his  own,  detained  in 


792  APPENDIX. 


tlie  execution   of  the  commission,  for   his    £     s.   d. 
expenses  the  sum  of 2     2     0 

For  every  day  in  whicli  he  is  hona  fide  em- 
ployed in  the  examination  of  witnesses,  the 
further  sum  of 3     3     0 

For  every  mile  that  he  travels  directly  from 
his  place  of  residence  to  the  place  where  he 
opens  the  commission,  and  from  place  to 
place  where  the  commission  is  adjourned, 
and  from  the  place  where  he  last  acts  in 
the  execution  of  the  commission  to  his  place 
of  residence,  the  sum  of 0     1     6 

Order  CXI. 
Publication  is  to  pass,  without  rule  or  order,  on  the  expi- 
ration of  two  months  after  the  filing  of  the  replication, 
unless  such  time  expires   in  the   Long  vacation,   or   is 
enlarged  by  order. 

Order  CXII. 

If  the  two  months  after  the  filmg  of  the  replication 
exjnre  in  the  Long  vacation,  publication  is  to  pass  on  the 
second  day  of  the  ensuing  Michaelmas  term,  unless  the 
time  is  enlarged  by  order. 

Order  CXIII. 

If  the  time  is  enlarged  by  order,  pul)lication  is  to  pass, 
without  rule  or  order,  on  the  expiration  of  the  enlarged 
time,  unless  the  enlarged  time  expires  in  the  Long  vaca- 
tion, in  which  case  publication  is  to  pass,  without  rule  or 
order,  on  the  second  day  of  the  ensuing  Michaelmas  term, 
unless  the  time  is  further  enlarged  by  order. 


ENGLISH  ORDERS  OF  1845.  793 


Order  CXIV. 
Any  defendant  may,  ni)on  notice,  move  tlie  court,  that 
the  bill  may  l)e  dismissed  with  costs  f(jr  want  of  prosecu- 
tion, and  the  court  may  order  accordingl}'. 

1.  If  the  plaintifl-^  ha\dng  obtained  no  order  to  enlarge  the 

time,  does  not  ol)tain  and  serve  an  order  for  leave  to 
amend  the  bill,  or  does  not  file  tlie  replication,  or  set 
down  the  cause  to  be  heard  on  bill  and  answer, 
within  four  weeks  after  the  answer,  or  the  last  of  the 
answers,  is  found  or  deemed  to  be  sufficient,  or  after 
the  filing  of  a  traversing  note  ;  or 

2.  If  the  plaintitf,  having  undertaken  to  reply  to  a  plea  to 

the  whole  bill,  does  not  file  his  replication  within  four 
weeks  after  the  date  of  his  undertakinfr ;  or 

3.  If  the  plaintiff,  havmg  obtained  no  order  to  enlarge  the 

time,  does  not  amend  the  bill  within  fourteen  days 
after  the  date  of  the  order  for  leave  to  amend ;  or 

4.  If  the  plaintiff,  having  obtained  no  order  to  enlarge  the 

time,  does  not  set  down  the  cause  to  be  heard,  and 
ol)tain  and  serve  a  sithpoena  to  hear  judgment  within 
four  weeks  after  publication  has  passed. 

Order  CXV. 
Where  the  plaintiff  has,  after  answer,  amended  his  bill 
without  requiring  an  answer  to  the  amendments,  any 
defendant  may,  upon  notice,  move  to  dismiss  the  bill  with 
costs  for  want  of  prosecution,  if  the  plaintiff,  having 
obtained  no  order  to  enlarge  the  time,  does  not  file  the 
replication,  or  set  down  the  cause  to  be  heard  on  bill  and 
answer,  within  the  times  following,  viz : 


794  APPENDIX. 


1.  Witliin  fourteen  days  after  tlie  service  of  notice  of  the 

amendment  of  the  hill,  in  cases  where  the  defendant 
does  not  desire  to  answer  the  amendments. 

2.  "Within  fourteen  days  after  the  master's  refusal  to  allow 

further  time,  in  cases  where  the  defendant,  desiring 
to  answer,  has  not  put  in  his  answer  within  eight 
days  after  the  service  of  notice  of  the  amendment  of 
the  bill,  and  the  master  has  refused  to  allow  further 
time. 

3.  Within  fourteen  days  after  the  filing  of  the  answer,  in 

cases  where  the  defendant  has  put  in  an  answer  to 
the  amendment,  unless  the  plaintiff  has,  within  such 
fourteen  days,  obtained  from  the  court  a  special  order 
for  leave  to  re-amend  the  bill. 

Order  CXVI. 
If,  after  publication  passed,  the  plaintiff  neglects  to  set 
down  the  cause  to  be  heard,  any  defendant,  after  the 
expiration  of  four  weeks,  may  set  the  same  down  at  his 
own  request,  instead  of  proceeding  to  dismiss  the  bill  for 
want  of  prosecution,  and  may  obtain  a  subpcena  to  hear 
judgment,  and  serve  the  same  on  the  plaintiff. 

Order  CXVII. 
If  the  plaintiff,  after  the  cause  is  set  down  to  be  heard, 
causes  the  bill  to  be  dismissed  on  his  application,  or  if  the 
cause  is  called  on  to  be  heard  in  court  and  the  plaintiff 
makes  default,  and  by  reason  thereof  the  bill  is  dismissed, 
then,  and  in  such  case,  such  dismissal  is,  unless  the  court 
otherwise  orders,  to  be  equivalent  to  a  dismissal  on  the 
merits,  and  may  be  pleaded  in  bar  to  another  suit  for  the 
same  matter. 


ENGLISH  ORDERS  OF  1845.  795 

Order  CXVIII. 
A  defendant  is  not  to  be  at  liberty  to  move  to  dismiss 
a  bill  for  want  of  prosecution,  until  after  the  expiration  of 
the  time  within  wliich  a  plaintiii'  may  obtain  an  order  to 
amend  such  bill. 

Order  CXIX. 
In  all  cases  where  any  person  or  party,  lla^'iug  obtained 
from  the  court  or  from  the  master  any  order  upon  condi- 
tion, does  not  perform  or  comply  with  such  condition,  he 
is  to  be  considered  to  have  waived  or  abandoned  such 
order  so  far  as  the  same  is  beneficial  to  himself,  and  any 
other  party  or  person  interested  in  the  matter  may,  on 
breach  or  non-performance  of  the  condition,  take  either 
such  proceedings  as  the  order  may  in  such  case  warrant, 
or  such  proceedings  as  might  have  been  taken  if  no  such 
order  had  been  made,  unless  the  court  orders  to  the 
contrary. 

Order  CXX. 
Where  costs  are  to  be  taxed  as  between  party  and  party, 
the   taxing   master  may  allow  to  the  party  entitled  to 
receive  such  costs  all  such  just  and  reasonable  expenses  as 
appear  to  have  been  properly  incurred  in 

The  service  and  execution  of  writs,  and  the  service  of 

orders,  notices,  petitions,  and  warrants; 
Advdsing  with  counsel  on  the  pleadings,  e\ddence  and 

other  proceedings  in  the  cause ; 
Procuring  counsel  to  settle  and  sign  pleadings,  and  such 

petitions  as  may  appear  to  have  been  proper  to  be 

settled  by  counsel ; 


796  APPENDIX. 


Procuring  cousnltations  of  counsel ; 

Procuring   tLe   attendance  of  counsel   in   the  master's 

offices  ujwn  questions  relating  to  pleadings  or  title ; 
Procuring  evidence  by  deposition  or  affidavit,  and  the 

attendance  of  witnesses;   and 
Su2:)plying   counsel   with    copies   of  or   extracts   from 

necessary  documents. 

But  in  allowing  such  costs,  the  taxing  master  is  not  to 
allow  such  party  any  costs  which  do  not  aj^pear  to  have 
been  necessary  or  proper  for  the  attainment  of  justice,  or 
for  defending  his  rights,  or  which  appear  to  have  been 
incurred  through  over  caution,  negligence,  or  mistake,  or 
merely  at  the  desire  of  the  party. 

Order  CXXI. 
The  costs  of  such  copies  of  pleadings  and  proceedings  as 
have  heretofore  been  allowed  in  the  taxation  of  costs 
Ijetween  party  and  party  in  country  causes,  are,  hereafter, 
t(j  l)e  allowed  in  the  taxation  of  costs  between  party  and 
pai'ty  in  town  causes. 

Order  CXXIL 
If  upon  the  hearing  of  any  cause,  petition,  or  motion, 
the  court  is  of  opinion  that  any  pleading,  petition,  or 
affida\nt  which  has  not  been  referred  for  imjDertinence,  or 
any  part  of  any  such  pleading,  petition  or  affidavit,  is 
improper  or  of  unnecessary  length,  the  court  may  either 
declare  such  pleading,  petition,  or  affidavit,  or  any  part 
thereof,  to  be  improper  or  of  unnecessary  length,  or  may 
direct  the  taxing  master  to  look  into  such  pleading,  peti- 
tion, or  affidavit,  and  distinguish  what  parts  or  part  thereof 


ENGLISH  ORDERS  OF  1845.  797 

are  or  is  improper  or  of  unnecessary  lenj^li,  and  may  direct 
the  taxing  master  to  ascertain  the  costs  occasioned  to  any 
part}'  l)y  such  parts  or  part  thereof  as,  in  the  one  case, 
may  have  been  declared  to  be,  and  hi  the  otlier  case  may 
have  been  dLstmguished  as  being  improper,  or  of  unneces- 
sary lengtli,  and  may  make  such  order  as  is  just  for  the 
payment,  set-off,  or  other  alhjwance  of  such  costs. 

Order  CXXIII. 
Upon  interlocutory  applications,  where  the  court  deems 
it  proper  to  award  costs  to  either  party,  the  court  may,  l>y 
the  order,  direct  payment  of  a  sum  in  gross  in  lieu  of  taxed 
costs,  and  direct  by  and  to  whom  such  sum  in  gross  is  to 
be  paid. 

Order  CXXIV. 
In  cases  where  a  bill  or  petition  is  dismissed  \A'ith  costs, 
or  a  motion  ls  refused  with  costs,  or  any  costs  are  by  any 
general  or  special  order  ordered  or  decreed  to  be  paid,  the 
taxing  master  may  tax  such  costs  without  any  order 
referring  the  same  for  taxation,  unless  the  court,  upon  the 
api)lication  of  the  party  alleging  himself  to  Ije  aggrieved, 
prohibits  the  taxation  of  such  costs ;  and  the  costs  to  be 
certified  by  the  taxing  master  are  to  be  recovered   by 

Order  CXXV. 
The  costs  of  a  1  )ill  of  discovery  filed  by  any  defendant 
to  a  l)ill  for  relief  are  to  be  costs  in  the  oriirinal  cause, 
unless  the  court  otherwise  orders. 


798  APPENDIX. 


Order  CXXVI. 
All  affidavits  are  to  be  taken  and  expressed  in  the  first 
person  of  the  dej)onent. 

Order  CXXVII. 
All  copies  of  affidavits  are  to  be  ready  for   delivery 
within  forty-eight  hours  after  the  same  are  bespoke. 

Order  CXXVIII. 
Any  solicitor,  party,  or  person  filing  an  affidavit  not 
taken  and  expressed  in  the  first  person  of  the  deponent,  is 
not  to  be  allowed  the  costs  of  preparing  and  filing  such 
affida\dt  in  any  taxation  of  costs. 


INDEX 

TO   TIIK 

ORDERS  OF  THE  HIGH  COURT  OF  CHANCERY, 

IN  ENGLAND, 

IN    FORCE    IN    1845. 


*-*  The  references  arc  to  the  orders. 


Ordbb. 


Affidavits  : 

How  expressed 126 

Copies  of  when  to  be  ready 126 

To  amend  bill,  who  to  make G9 

To  prove  service  of  subpojna 34 

When  no  costs  on 128 

Amendments  : 

To  bill  before  answer 64 

"       in  clerical  errors 65 

"      when  as  of  course,  Arts.  32,  33 16  ;  66 

"       on  special  order 67 

"       after  replication 68 

"       affidavits  for  who  to  make 69 

"       within  what  time  to  be  made 70 

"      limitation  of  time  for.  Arts.  34,  35 16 

"      in  cases  of  injunction,  Art.  35 16 ;  60 


800  INDEX. 

Order. 

Answer  : 

To  avoid  injunction,  when  to  be  put  in,  Art.  11 16 

To  Orig.  or  Sup.  bill,  when  to  be  put  in,  Art.  13 16 

To  amended  bill,  when  to  be  put  in.  Art.  14 16 

To  amendments  and  exceptions,  when  to  be  put  in,  Art.  15,  16 

To  amended  answer,  after  one  answer.  Art.  IG 16 

Exceptions  to,  when  to  be  made,  Art.  22   16 

"             submitted  to.  Arts.  23,24 16 

"              referred.  Arts.  25,  26 16 

"              Mas.  Rep.  on,  Arts.  27,  28 16 

Referring  back  on  old  exceptions,  Art.  29 16 

Found  insufficient,  further,  Art.  30 16 

When  deemed  sufficient,  Art.  31    16 

To  amended  bill,  to  avoid  injunction,  Art.  36 16 

To  amended  bill,  when  none  required.  Art,  28 16 

When  may  be  taken  by  commission 43 

Further  time  to  put  in 19 

Attachment  for  want  of 72 

"             discharge  of 73,  74 

"             new  one 73,  74 

Time  not  computed  in  case  of  ...  - 15 

Appearance : 

Of  defendant,  when.  Art.  3 16 

"            when  may  be  entered  adversely,  Art,  4 .  16 

"            when  served  with  copy  bill.  Art.  5 10  ;  37 

"            neglecting  or  refusing  to  appear 29 

"            being  an  infant  or  lunatic 30 

"            absconding   31 

"  after   his    appearance   has    been    adversely 

entered 36 

Of  absent  defendant 33 

Bill: 

Copy  of  when  to  be  served,  Ai't.  2 16 

Amendments  to  ;  see  Amendments. 
Pro  confesso  ;  see  Tro  Confesso. 


ENGLISH  ORDERS  OF  1845.  801 

Obdbb. 

Bill  (continued) : 

Time  to  serve  copy  may  be  extended 28 

Copy  when  to  be  served  on  absent  defendant 33 

Amended    and    no    answer   required,    warrant  to    answer 

when  obtained 71 

When  may  be  dismissed 114 

When  dismissed,  after  amendments 115 

"                   "      publication 116 

"                   "      cause  set  down   117 

No  motion  to  dismiss,  until  when 118 

Commission  to  examine  witnesses: 

When  may  be  applied  for,  Art.  42 16 

To  be  issued  to  two  commissioners 94 

But  only  one  to  act 94 

When  plaintiff  may  give  notice  for 95 

When  defendant  may  give  notice  for 96 

Carriage  of 95,  96 

Commissioners  may  be  agreed  on 97 

Commissioners,  how  selected 98,  99 

Additional  one  may  be  allowed 100 

Sealing  and  delivery  of 101 

Default  of  obtaining 102 

Form  of 103 

Oath  of  commissioners 104 

Oath  of  clerks 105 

Notice  of  examination  under 106 

Depositions  how  expressed 107 

How  executed  and  adjournment  of 108 

How  transmitted  with  depositions 109 

Commissioner's  fees 110 

To  take  answer 43 

Costs : 

Of  scandal  and  impertinence.  Arts.  6,  7 16  ;   42 

"    entering  a})pcaraiice  of  defendant 35 

"    successful  demurrer 45 

51 


802  INDEX. 

Order. 

Costs  (continued) : 

Demurrer  to  wliole  bill   46 

Demurrer  to  part  of  bill 47 

Of  plea,  when  same  is  allowed 48 

Of  plea,  when  not  set  clown 49 

For  what  allowed 120 

Rule  of  taxation 120 

Same  in  town  and  country  causes 121 

When  pleadings  unnecessarily  long 122 

Upon  interlocutory  applications 123 

When  taxed  without  order 124 

Of  cross-bill  of  discovery 125 

Of  affidavits 128 

Death : 

Of  sole  plaintiff,  how  suit  revived 63 

Defendant : 

When  to  appear,  Art.  3 16 

Adverse  appearance  of.  Art.  4 16 

Appearance  of,  on  service  of  copy  of  bill.  Art.  5 16 

When  to  demur,  Art.  10 16 

plead.  Arts.  11,  12,  13 16 

"         answer.  Arts.  14,  15,  16   16 

May  compel  plaintiff  to  elect.  Arts.  20,  21 16 

Absent,  service  of  subpoena  on 33 

"        time  of  appearance 33 

"        adverse  appearance 33 

May  appear  after  adverse  appearance 36 

Attachment  of,  for  want  of  answer 72 

*'  discharge  from   73,  74 

"  new 73,  74 

In  poverty,  assignment  of  counsel  for 75 

Attachment  against.  Arts.  3,  14,  15,  10 16 

Imprisoned,  Arts.  3,  14,  15,  16 16  ;  73,  74 

Demurrer: 

When  to  be  put  in.  Art.  10 16 

To  avoid  injunction.  Art.  11 16 


ENGLISH  ORDERS  OF  1845.  803 

OnoBR. 

Demurrkr  (continued) : 

To  j)icvcnt  revivor,  Art.  12 1 ') 

To  Orig.  or  Sup.  bill,  Art.  13 1 G 

To  amended  bill,  Art.  14 ]  'i 

To  amended  bill,  alter  one  answer.  Art.  IG    1  G 

To  whole  bill.  Art.  17 1 G 

Need  not  l)e  entered  with  registrar 44 

Either  party  may  set  down 44 

Costs  on,  successful 45 

Costs  on,  to  whole  bill 47 

Costs  on,  to  part  of  l»ill 48 

Time  not  computed  in  putting  in 15 

Exceptions  : 

Not  to  be  filed  nunc  'pro  tunc 17 

Mas.  report  on,  further  time  for 19,  20 

See  Auiswer. 

When  to  be  referred,  Art.  6 1 G 

Mas.  report  thereon,  Art.  7 16 

Mas.  report  excepted  to.  Arts.  8,  9 IG 

GUAUDIAIN    AD    LITEM". 

To  be  appointed  for  infant  or  lunatic  defendant 32 

Impertinence : 

See  Scandal. 

Injunction  to  stay  proceedings  at  law: 

When  plaintiff  entitled  to 59 

Obtained,  bill  may  be  amended GO 

Motion  to  dissolve,  before  answer Gl 

Di'murrer,  &c.,  to  avoid,  Art.  10 IG 

Common,  when  plaintiff  may  have,  Art.  11 [iS 

Judgment  : 

Subpoena  for,  when.  Art.  45 IG 

Subpoena  for,  when  returnable,  Art.  46 16 


804  INDEX. 

Order. 
l\l0TI0NS  : 

Time  between  notice  and  lieariiig  of,  Arts.  47,  48 IG 

Offices  : 

Of  the  com  t,  when  open 5 

Of  accountant  general,  when  open 6 

Of  vacation  masters,  when  open 7 

Orders: 

Former  ones  repealed 1 

Former  ones  adopted 2 

When  to  go  into  operation 3 

Conditional,  when  deemed  waived 119 

Petitions  : 

Time  between  notice  and  hearing  of.  Art.  47 16 

Plaintiff: 

Time  of  giving  security  for  costs   15 

When  may  enter  defendant's  appearance.  Art.  4 16 

When  may  have  common  injunction,  Art.  11 16 

When  may  have  order  to  revive,  Art.  12 16 

May  be  rccpare^d  to  elect,  vVrls.  20,  21,  51 16 

See  Aiucndmcrits  and  Dismissal. 

Not  to  proceed  till  after  replication,  having  undertaken  to 

reply  to  plea   50 


Plea 


To  avoid  injunction.  Art.  11 16 

To  avoid  revivor.  Art.  12 16 

T.J  Orig.  or  Sup.  bill,  Art.  13 KJ 

To  amended  bill,  Art.  14 16 

To  amended  bill  after  one  answer,  Art.  15 16 

When  to  be  set  down,  Art.  19 16 

Need  not  be  entered  with  registrar 44 

Either  party  may  set  d(jwn 44 

Allowed,  costs  <jf 48 

When  to  be  allowed  with  costs 40 

What  time  docs  not  count  against 15 


ENGLISH  ORDERS  OF  1845.  805 


OnOER. 

Pro  confesso: 

Bill  taken  for  want  of  answer,  Art.  -19 16 

When  attachment  can  not  be  executed 77 

Airainst  abscondinff  debtor 78,  79 

Decree  of,  discharge  of  defendant SO 

Decree  of,  when  taken 81 

Bill  taken,  defendant  may  appear  at  hearing 82 

Decree  of,  nature  of S3 

Decree  of,  when  absolute 83,  90 

On  decree  of,  receiver  or  sequestration  may  be  ordered  . .  84 

On  decree  of,  when  receiver  or  sequestrator  may  act 88 

Decree  of,  how  entered 85 

Decree  of,  notice  of 86 

Decree  of,  when  may  be  opened 87 

Decree  of,  rehearing  on 89 

Decree  of,  not  absolute,  defendant  may  answer 91 

Decree  of,  rights  and  liabilities  under 92 

Publication  : 

When  to  pass HI.   112 

When  to  pass,  on  enlarged  time 113 

Replication  : 

When  to  be  filed,  Art,  37 16 

To  amended  bill,  Arts.  39,  40 16 

When  defendant  answers   amendments,  to  which   answer 

was  not  required.  Art.  41 16 

Only  one  necessary 93 

Form  of 93 

Revivor : 

Order  for,  defendant  not   pleading,  &c.,  Art.  12 16  ;  61 

Order  for  defendant,  not  appearing 62 

Order  fur,  on  death  of  sole  plaintiH' 63 

Scandal : 

Exceptions  for,  when  to  be  referred,  Art.  6 16  ;  39 

Exceptions  for,  Mas.  Report  on,  Art  7 16 ;   40 


806  INDEX. 

Order. 

Scandal  (continued) : 

Mas.  report,  exceptions  to,  Arts.  8,  9 16 

Exceptions  for,  to  be  in  writing 38 

"VVlien  expunged  after  Mas.  Rep 41 

Costs  on,  Arts.  6,  7 16 ;  42 

SUBPCENA  : 

When  to  be  served.  Art.  1 16 

When  returnable 22 

When  returnable,  if  served  out  of  juris 23 

By  whom  prepared 24 

How  amended  before  service 25 

To  answer  amended  bill,  how  served 26 

None  necessary  for  new  answer,  if  former  one  held  insuffi- 
cient    27 

AVhen  served  on  absent  defendant 33 

To  rejoin  not  necessary 93 

For  judgment,  when,  Art.  45 16 

For  judgment,  when  returnable.  Art.  46 16 

Service  of,  proof  of 34 

Testimony: 

Publication   of,  Art,  44 16 

Time: 

How  computed 11 

Month,   length  of 12 

Sundays,  when  not  reckoned 13 

Vacations,  when  not  reckoned 14 

Of  procedure,    same  in  town  and  county  causes 16 

See  also  Order  16,  in  full. 

Court  may  enlarge  or  abridge 21 

Traversing  note: 

When  plaintiff  may  file.  Arts.  13,  14,  15,  16 16 

On  default  to  answer 52 

On  amended  bill 53 

After  insufficient  answer 54 


ENGLISH  ORDERS  OF  1845.  807 


Okdbr. 

Traversing  note  (continued): 

On  plea  or  demurrer  overruled .OS 

Copy  to  be  served 50 

Effect  of 57 

Served,  defendant  can  not  plead,  &c 58 

Witnesses  : 

Time  for  examining,  Art.  43 16 

Words  : 

Interpretation  of 4 

Vacations  : 

Observed  in  the  various  offices 8 

Easter,  length  of 8 

Whitsun,  length  of 8 

Long,  length  of 8 

Christmas,  length  of 8 

Length  of,  how  computed 8 

May  be  altered 10 

Wlien  not  reckoned  in  computation  of  time 14 

In  the  accountant  general's  office 9 


LIST 


CHIEF    JUSTICES 


ASSOCIATE  JUSTICES 


SUPREME  COURT  OF  THE  UNITED  STATES, 


AND  OK  TUE 


CLERKS  AND  REPORTERS  OF  THE  SAME  ; 


TOGETIIKE 


WITH  THE  TIMES  AND  PLACES 


HOLDING   THE    FEDERAL   COURTS, 


NAMES  AND  RESIDENCES 


OFFICERS    THEREOF. 


CHIEF  JUSTICES 


SUPREME  COURT  OF  THE  UNITED  STATES. 


1.  JOHN  JAY,  of  JSfeio-YorTc.    Appointed  l)y  AVa.^h- 

ington,  by  and  witli  the  advice  and  consent  of  the 
Senate,  2Gth  September,  1789.     On  the  19th  April, 

1794,  he  was  confirmed  as  envoy  extraordinary  to 
England,  and  resigned  the  office  of  chief  justice. 

2.  JOHN  EUTLEDGE,  of  South  Carolina.    Appointed 

by  Washington,  during  recess  of  the  Senate,  1st  July, 

1795.  Presided  on  the  bench,  August  term,  1795. 
Nominated  on  the  10th,  and  rejected  by  the  Senate 
on  the  15th  December  of  same  year. 

3.  WILLIAM  GUSHING,  of  Massachusetts.     An  asso- 

ciate justice,  nominated  by  Washington,  confirmed 
and  appointed  27th  January,  179G.  Declined  the 
appointment. 

4.  OLIVER  ELLSWOETH,  of  Connecticut.     Nominated 

by  Washington,  and  api)ointed  4th  March,  179G. 
Appointed  27th  February,  1799,  envoy  extraordinary 


812  APPENDIX. 


and  minister  plenipotentiary  to  France.  Presided, 
however,  on  the  bench,  August  term,  1V99.  Pro- 
ceeded on  his  mission  November,  1799,  when  he 
resio-ned  his  office. 

5.  JOHN  JAY,  of  New-  Yorh.  Governor  of  that  state. 
Nominated  by  John  Adams,  and  appointed  19th 
December,  1800.     Declined  to  serve. 

G.  JOHN  MARSHAL,  of  Virginia.  Secretary  of  State. 
Nominated  by  John  Adams  to  the  Senate  the  20th, 
confirmed  the  2'7th,  and  commissioned  the  31st  Janu- 
ary, 1801.  He  continued,  however,  to  act  as  Secretary 
of  State  until  3d  March,  1801,  the  close  of  Adams' 
administration.  He  also  presided  on  the  bench,  Feb- 
ruary term,  of  the  same  year.     He  died  in  1835. 

7.  ROGER  B.  TANEY,  of  Maryland.  Nominated  by 
Jackson,  and  confirmed  and  appointed  15th  March, 
1836.     Present  incumbent. 


ASSOCIATE  JUSTICES 

OF   THE 

SUPREME  COURT  OF  THE  UNITED  STATES. 


1.  JOHN  PvUTLEDGE,  of  South  CaroUna.     Appointed 

by   Wa.sluii<zton,  20tli  September,  1789.     Kesigned; 
and  Thomas  Johnson  appointed  in  his  place. 

2.  WILLIAM  GUSHING,  of  Masmcliusetts.     Appoint- 

ed  by  Washington,  27tli  September,   1789.     Died; 
and  Le\d  Lincoln  appointed  in  bis  place. 

3.  ROBERT  11.  HARRISON,  of  Maryland.     Appoint. 

ed    by   Wjishington,    28th   September,    1789.     Re- 
signed ;  and  James  Iredell  appointed  in  his  place. 

4.  Jx\MES  AVILSON,  of  Pennsylvania.     Appointed  by 

Wasliino't<)n,    29tli    September,    1789.     Died;    and 
Bushrod  Washington  appointed  in  his  place. 

5.  JOHN  BLAIR,  of   Virginia.     Appointed  by  AVa^h- 

ington,    oOth     September,     1789.      Resigned;    and 
Samuel  Chase  appointed  in  his  place. 

6.  JAMES  IREDELL,  of  North  Carolina.     Appointed 

by  Washing-ton,  during  recess,  in  place  of  Robert  II. 


814  APPENDIX. 


Harrison.  Confirmed  and  appointed  lOtli  February, 
1790.  Died;  and  Alfred  Moore  appointed  in  his 
place. 

T.  THOMAS  JOHNSON,  of  Maryland.  Appointed  by 
Washington,  during  recess,  5tli  August,  1791,  in  place 
of  John  Eutledge.  Confirmed  and  appointed  7th  No- 
veml)er,  1791.  Resigned;  and  William  Patterson 
appointed  in  his  place. 

8.  WILLIAM  PATTERSON,  of  New  Jersey,  Governor 

of  that  State.  Appointed  by  Washington,  4th  March, 
1793,  in  place  of  Thomas  Johnson.  Hied;  and 
Brockholst  Livingston  appointed  in  his  place. 

9.  SAMUEL   CHASE,   of   Maryland.      Appointed  by 

Washington,  27th  January,  1796,  in  place  of  John 
Blair.  Died ;  and  Gabriel  Duval  aj^j^ointed  in  his 
place. 

10.  BUSHROD    WASHINGTON,   of    Virginia.     Ap- 

j)ointed  by  John  Adams  during  recess,  29th  Septem- 
ber, 1798,  in  place  of  James  Wilson.  Confirmed  and 
appointed  20th  December,  1798.  Died;  and  Henry 
Baldwin  appointed  in  his  place. 

11.  ALFRED  MOORE,  of  North  Carolina.     Appointed 

by  John  Adams,  10th  December,  1799,  in  place  of 
James  Iredell.  Resigned ;  and  William  Johnson,  ap- 
pointed in  his  place. 

Note.  The  records  of  the  state  department  do  not  show  that 
any  commission  was  actually  issued  to  Mr.  Justice  Moore,  The 
time  of  his  appointment  is  given  in  1  Cond.  Reports.  And  in 
4  Dallas  Reports,  his  name  appears  as  a  presiding  judge. 


ASSOCIATE  JUSTICES.  815 


1-2.  WILLIAM  JOHNSON,  of  Sovih  Carolina.  Aj.- 
poiiited  by  Jeffei^oii,  2Gtli  Marcli,  1804,  in  place  of 
Alfred  M(X)re.  Died;  aiul  James  M.  Wayne  aj)- 
pointed  in  his  place. 

13.  BR0CKII0L8T  LIVINGSTON,  of  Nm-  York    Ap- 

pointed by  Jefterson  dni-in^;  recess,  lOtli  Noveml)ei-, 
180(3,  in  i)lace  of  AVilliani  J*atterson.  Confirmed 
ITtli  Jannary,  1807.  Died;  and  Smith  Thompson 
appointed  in  his  place. 

14.  THOMAS  TODD,  of  Kentucky.     Appointed  by  Jef- 

ferson, 3d  March,  1807.  Died;  and  Robert  Trimble 
appointed  in  his  place. 

15.  LEVI  YX^Q^OI^.of  Massacliusetts.     Appointed  l)y 

Madison,  11th  January,  1811,  in  place  of  William 
Cnshing.  Declined;  and  Jolm  Quincy  Adams  ap- 
pointed in  his  place. 

IC.  JOHN  QUINCY  ADAMS,  of  Massachisetts.  Ap- 
pointed by  Madison,  2 2d  February,  1811,  in  i)lace  of 
Levi  Lincoln.  Declined  ;  and  Josejdi  Story  appoint- 
ed in  his  place. 

17.  JOSEPH  BTO'RY,  of  MassacJiusetts.    Appointed  by 

Madison,  18th  November,  1811,  in  i)lace  of  John 
Quincy  Adams.  Died ;  and  Levi  Woodbury  ap- 
pointed in  his  place. 

18.  GABRIEL  DUVAL,  of  Maryland.     Appointed  by 

Madison,  18th  November,  1811,  in  place  of  Samuel 
Chase.  Resigned  ;  and  Philip  P.  Barbour  appointed 
ill  his  place. 


gl6  APPENDIX. 

1 9.  SMITH  THOMPSON,  of  New-  Yorl.     Appointed  by 

Monroe  during  recess,  1st  September,  1823,  in  place 
of  Brockliolst  Li^dngstou.  Confirmed  Otli  December, 
1823.  Died;  and  Samuel  Nelson  appointed  in  his 
place. 

20.  ROBERT  TRIMBLE,  of  Kentucky.     Appointed  by 

John  Q.  Adams,  9th  May,  182G,  in  place  of  Thomas 
Todd.  Died ;  and  John  McLean  appointed  in  his 
place. 

21.  JOHN  McLEAN,  of  Ohio.     Appointed  by  Jackson, 

7th  March,  1829,  in  place  of  Robert  Trimble.  Still 
a  member  of  the  court. 

22.  HENRY  BALDWIN,  of  Fennsrjlvania.    Appointed 

])y  Jackson,  Gth  January,  1830,  in  place  of  Bushrod 
Washington.  Died ;  and  Robert  C.  Grier  appointed 
in  his  place. 

23.  JAMES  M.  WAYNE,  of  Georgia.     Appointed  by 

Jackson,  9th  January,  1835,  in  place  of  William 
Johnson.     Still  a  member  of  the  court. 

24.  PHILIP  P.  BARBOUR,  of  Virginia.    Appointed 

by  Jackson,  15th  March,  1836,  in  place  of  Gabriel 
Duval.  Died;  and  Peter  V.  Daniel  appointed  in 
his  place. 

25.  JOHN  CATRON,  of  Tennessee.     Appointed  by  Van 

Buren,  8th  March,  1837.  Still  a  member  of  the 
court, 

26.  WILLIAM   SMITH,   (f  Alabama.     Appointed  by 

Van  Buren,  8th  March,  1837.  Declined;  and  John 
McKinley  appointed  in  his  place. 


ASSOCIATE  JUSTICES.  817 

27.  JOHN  McKINLEY,  of  Alalama.  Appointed  l)y 
Van  Bureii  during  recess,  22d  April,  1837,  in  ])lace 
of  William  Smith.  Confimied  2.5tli  8epteml)er,  18o7. 
Still  a  memljer  of  tlie  court. 

28.  PETER  V.  DANIEL,  of  Virginia.     Appointed  by 

Van  Bm-en,  3d  March,  1841,  in  place  of  Philip  P. 
Barbour.     Still  a  member  of  the  court. 

29.  SAMUEL  NELSON,  of  Neiu-Yorh.    Appointed  by 

Tyler,  13th  February,  1845,  in  place  of  Smith  Thomp- 
son.    Still  a  member  of  the  court. 

30.  LEVI  WOODBURY,  of  New  Hampshire.   Appoint- 

ed by  Tyler,  during  recess,  20th  September,  1845,  in 
place  of  Joseph  Story.  Confirmed  3d  January,  1846. 
Still  a  member  of  the  court.  Died  Sej^tember  4th, 
1851.     Benjamin  R.  Curtis  appointed  in  his  place. 

31.  ROBERT  C.  GRIER,  of  PenmTjlvania,.     Appointed 

by  Polk,  4th  August,  1846,  in  place  of  Henry  Bald- 
win.    Still  a  member  of  the  court. 

32.  BENJAMIN  R.  CURTIS,  of  Massachusetts.  Ap- 
pointed by  Fillmore,  in  recess.  Confirmed  27th  Jan- 
uaiy,  1852;  in  place  of  Le\i  Woodbmy.  Still  a 
member  of  the  com*t. 


52 


818  APPENDIX, 


JUSTICES  OF  THE  SUPREME  COURT, 

ARRANGED  ACCORDING  TO  THEIR  ORDER  OF  PRECEDENCE,  WITH 
TIIEIR  ri^VCES  OF  RESIDENCE. 


CHIEF  JUSTICES. 

ROGER  B.  TANEY, Baltimore,  Md. 

JOHN  McLEAN, Cincinnati,  Ohio. 

JAMES  M.  WAYNE, Savannah,  Geo. 

JOHN  CATRON, Nashville,  Tenn. 

JOHN  McKINLEY, Louisville,  Ky. 

PETER  Y.  DANIEL, Richmond,  Va. 

SAMUEL  NELSON, Oooperstown,  JV.  Y. 

LEVI  WOODBURY, PoHsmmitli,  N.  H. 

ROBERT  C.  GRIER, Pittsburgh,  Pa. 

One  of  the  above  justices,  tlie  Hon.  Levi  Woodbury, 
having  lately  died,  and  tlie  Hon.  Benjamin  R.  Curtis,  of 
Boston,  having  been  appointed  in  bis  place,  tlie  new  ap- 
pointee w^ill  rank  last  in  order  of  precedence. 


CLERKS  AND  RErORTERS.  819 


CLERKS  OF  THE  SUPREME  COURT. 


1.  JOHN  TUCKER,  of  Massachusetts.     Appointed  WA 

February,  1700.     Resigned. 

2.  SAMUEL  BAYARD,  of  Delaware.    Appointed  1st 

August,  1791.     Resigned. 

a.  ELIAS  B.  CALDWELL,  of  Neio  Jersey.     Appoint- 
ed 15tli  August,  1800.     Died. 

4.  WILLIAM  GRIFFITH,  of  New  Jersey.     Appointed 
9tli  February,  18l>G.     Died. 

.^).  WILLIAM  T.  CARROLL,  of  District  of  Columhio. 
Appointed  •27tli  January,  1827.     Present  incumbent. 


REPORTERS  OF  THE  SUPREME  COURT. 


ALEXANDER  J.  DALLAS,  from  1789  to  1800,  inclusive. 
WILLIAM  CRANCH,  from  1801  to  1815,  inclusive. 
HENRY  WIIEATON,  from  1816  to  1827,  inclusive. 
RICHARD  PETERS,  Jun.,  from  1828  to  1842,  inclu«;ive. 
BENJAMIN  C.  HOWARD,  from  1843.  Present  re- 
porter. 


UNITED  STATES  COURTS. 

TIMES  AND  PLACES  OF  HOLDING,   AND  OFFICERS  OF 

SAME. 

N.  B. — It  is  believed  that  this  list,  though  differing  somewhat  from 
that  found  in  the  American  Almanac  for  1852,  is  correct;  as  it  has 
been  compiled  from  a  careful  examination  of  the  United  States  Statutes. 


CIRCUIT  COURTS. 


FIRST  CIRCUIT. 
Hon.  Benja^iin  R.  Curtis,  Jastice,  Bo-'iton^  Ma-'^-'f. 

MAINE : 

Portland — Twenty-third    day  of  April    and    Sep- 
tember. 

NEW  HAMPSHIRE : 

Portsmouth — Eighth  day  of  May. 
Exeter — Eighth  day  of  October. 

MASSACHUSETTS : 

Boston — Fifteenth  day  of  May  and  Octol^er. 

RHODE  ISLAND: 

Netvport — Fifteenth  day  of  June. 
Providence— Y\itQQni\i  day  of  November. 


822  APPENDIX. 


SECOND  CIRCUIT. 
Hon.  Samuel  Nelson,  Justice,  Cooperstown^  J^.  Y. 

VERMONT : 

Windsor — ^Twenty-first  day  of  May. 
Hutland  — Tliird  day  of  October. 

CONNECTICUT; 

New-Haven — Fonrtli  Tuesday  In  April. 
Hartford — Tliird  Tuesday  in  September. 

NEW-YORK  : 

Northern  District. 

Alhany — Third  Tuesday  in  May  and  October. 
Canandaifjua — Tuesday   after    Third   Monday   in 
June. 

Southern  District. 

Netv-  Yorh — First  Monday  in  April. 
"  Third  Monday  in  October. 

"  Last  Monday  in  February,  for  Crimi- 

nal and  Equity  causes. 


THIRD  CIRCUIT. 
Hon.  Robert  C.  Grier,  Justice,  Pittshurgh^  Pa. 

NEW  JERSEY  : 

Trenton — Fourth  Tuesday  in  March  and  Septem- 
ber. 


UNITED  STATES  COURTS,  &c.  823 


PENNSYLVANIA  : 

Eastern  District. 

Pldladelphia — First  Monday  in  April  and  Octo>)er. 

Western  District. 

Pittsburgh — Second  Monday  in  May  and  November. 

Western  District. 

WilUamqwrt — Third  Monday  in  June  and  Septem- 
ber. 


FOURTH  CIRCUIT. 

Hon.  Roger  B.  Taney,  C.  Justice,  Baltimore^  Md. 

MARYLAND : 

Balt'unore — First  Monday  in  April  and  September. 

DELAWARE : 

New  Castle — Tuesday  after  Fonrtli  Monday  in  May. 
Dover — Tuesday  after  Third  Monday  in  Noveml)er. 

VIRGINIA: 

Eastern  District. 

Biclnnond — First   Monday   in   May,    and   Fourth 
JNIonday  in  November. 

Western  District. 

Lewishuvgli — Fii-st  Monday  in  August. 


824  APPENDIX. 


FIFTH  CIRCUIT. 
Hon.  John  McKinley,  Justice,  Louisville^  Ky. 

ALABAMA: 

Mobile — Second  Monday  in  Api-il  and  Fom-tli  Mon- 
day in  December. 

LOUISIANA: 

Easterjs-  District. 

New  Orleans — Fourtli  Monday  in  April  and  Third 
Monday  in  December. 
Western  District, 

District  Com-t  clothed  with  Circuit  Court  powers. 


SIXTH  CIRCUIT. 
Hon.  James  M.  Wayne,  Justice,  Savannah^  Ga. 

NORTH  CAROLINA: 

Baleigh — First  Monday  in  June,  and  Last  Monday 
in  December. 

SOUTH  CAROLINA: 

Charleston — Wednesday  before  Fourth  Monday  in 

March. 
ColumUa — Fourth  Monday  in  November. 

OEORGIA  : 

Southern  District. 

Savannah — Second  Monday  in  April. 
Milledgeville — ^Thursday    after    First    Monday   in 

November. 
Northern  District. 

District  Court  clothed  with  Circuit  Court  powers. 


UNITED  STATES  COURTS,  &c.  825 


SEVENTH  CIRCUIT. 

Hon.  John   McLean,  Justice,   Cincinnati^  0. 

OHIO : 

Columhus — ^Tliird  Tuesday  in  April  and  OctoLer. 

INDIANA : 

Indianai^olis — Tliu'd  Monday  in  May  and  Novem- 
ber. 

ILLINOIS : 

Springfield — First   Monday   in   July,    and    Third 

Monday  in  December. 
Chicago — First  Tuesday  in   October,  and  Third 
Tuesday  in  April. 

MICHIGAN: 

Detroit — Third  Monday  in  June,  and  Second  Mon- 
day in  October. 


EIGHTH  CIRCUIT. 

Hon.  John  Cateox,  Justice,  Nashville,  Tenn. 

KENTUCKY: 

Franhfort — ^Third  Monday  in  May  and  October. 

TENNESSEE: 

Eastern  District. 

Knoxville — Third  Monday  in  April  and  October. 


826 


APPENDIX. 


TENNESSEE— Continued  : 

Middle  District. 

Kas'hviUe— Fust  Monday  in  Marcli  and  September, 

Western  District. 

Jackson — Second  Monday  in  April  and  October. 

MISSOURI: 

St.  Louis — Fii'st  Monday  in  April. 


NINTH  CIRCUIT. 

Hon.  Peter  V.  Daniel,  Justice,  Richmmid^  Va. 

MISSISSIPPI: 

Jackson — First  Monday  in  May  and  November. 

ARKANSAS: 

Little  Roch — Second  Monday  in  April. 


DISTRICT  OF  COLUMBIA. 
Hon.  William  Ceanch,  Circuit  Judge,  Waslmigton. 

WasJiington — ^Fourth  Monday  in  March,  and  Third  Mon- 
day in  October. 


UNITED  STATES  COURTS,  &c.  827 


NEW  STATES. 

TEXAS,  IOWA, 

FLORIDA,  ARKANSAS,  West.  Dist., 

WISCONSIN,  CALIFORNIA. 

District  Courts  clothed  with  Circuit  Court  jioAvers. 


TERRITORIES. 

OREGON,  UTAH, 

MINNESOTA,  NEW  MEXICO. 

Territorial  Courts  clothed,  in  certain  cases,  with  Circuit 
Court  powers. 


DISTRICT  COURTS. 


MAINE. 
Hon.  AsHTJE  Ware,  Judge,  Portland. 

Portland — First  Tuesday  in  February  and  December. 
Wiscasset — Fii'st  Tuesday  in  September. 
Bangor — Fourth  Tuesday  in  June. 

Thomas  A.  Delois,  District  Attorney,  Portland. 
Willia:m  Paixe,  Marshal,  Bangor. 
Geokge  F.  Emery,  Clerk  Circuit  Court,  Portland. 
William  P.  Preble,  Clerk  District  Court,  Portland. 


828  APPENDIX. 


NEW  HAMPSHIRE. 
Hon.  Mathew  Harvey,  Judge,  HopTcinton. 

Fortsmoutli — Third  Tuesday  in  Marcli  and  September. 
Exeter — ^Third  Tuesday  in  June  and  December. 

William  H.  PixcKisrEY,  District  Attorney,  Exeter. 
Sa.aiuel  Gaefield,  Marshal,  Langdon. 
Albert  K.  Hatch,  Clerk,  Portsmouth. 


VEEMONT. 
Hon.  Samuel  Prentiss,  Judge,  Montpelier. 

Jiutland'^— Sixth  day  of  October. 
Windsor — Twenty-fourth  day  of  May. 

Abel  Underwood,  District  Attorney,  Wells  liiver. 
John  Pettis,  Marshal,  Windsor. 
Edward  H.  Prentiss,  Clerk,  Montpelier. 


MASSACHUSETTS. 

Hon.  Peleg  Sprague,  Judge,  Boston. 

Boston — ^Third  Tuesday  in  March;  Fourth  Tuesday  in 
June ;  Second  Tuesday  in  September ;  First  Tuesday 
in  December. 

George  Lunt,  District  Attorney,  Boston. 
Charles  Devans,  Jr.,  Marshal,  Boston. 
Isaac  O.  Barnes,  Clerk  Circuit  Court,  Boston. 
S.  E.  Sprague,  Clerk  District  Court,  Boston. 


UNITED  STATES  COURTS,  &c,        829 

connp:cticut. 

Hon.  Andrew  T.  Judson,  Judge,  Canterhury. 

New-Haven — Fourth  Tuesday  in  February  and  August. 
Hartford — Foui-th  Tuesday  in  May  and  November. 

Thomas  C.  Perkins,  District  Attorney,  Hartford. 
A.  A.  Pettexgall,  Marshal,  Bridgeport. 
A.  A.  BuRNiiAir,  Clerk,  New  Haven. 


KHODE  ISLAND. 
Hon.  John  Pitman,  Judge,  Providence. 

Providence — First  Tuesday  in  February  and  August. 
Newport — Second  Tuesday  in  May,  and  Third  Tuesday  in 
October. 

James  M  Clark,  District  Attorney,  Providence. 
George  W.  Jackson,  Marshal,  " 

John  T.  Pitman,  Clerk,  " 


NEW-YORK. 

lion.  Alfred  Conkling,  Judge,  Aiihurn. 
Northern  District. 

Albany — Third  Tuesday  in  January. 
Utica — Second  Tuesday  in  July. 


830  APPENDIX. 

Rochester — Tliird  Tuesday  in  May. 
Atihirn — ^Tliird  Tuesday  in  August. 
Buffalo — Second  Tuesday  in  November. 
One  term  for  the  counties  of  St.  Lawrence,  Clinton  and 
Franklin,  as  tlie  judge  may  direct. 

James  R.  La  whence.  District  Attorney,  Syracuse. 
Joim  T.  Busir,  Marslial,  Buffalo. 
Augustus  A.  Boyce,  Clerk  Circuit  Court,  TJtica. 
A.  CoNKLiNG,  Clerk  District  Court,  Auhirn. 

Hon.  Samuel  R.  Betts,  Judge,  JSfeiv-  Yorh. 
SouTHEEN  District. 
New-  YorJc — First  Tuesday  of  every  montli. 

J.  Peescott  Hall,  District  Attorney,  JVew-  Yorh 
H.  F.  Talmadge,  Marslial,  " 

John  W.  Nelson,  Clerk  Circuit  Court,      " 
James  W.  Metcalf,  Clerk  District  Court,  " 


NEW  JERSEY. 
Hon.  Philemon  Dickehson,  Judge,  Patersoii. 

Trenton — Third  Tuesdays  in  January,  April,  June  and 
September. 

William  Halsted,  District  Attorney,  Trentom. 
Robert  J.  Kennedy,  Marslial,  Steioartville. 
Edward  N.  Dickerson,  Clerk,  Paterson. 


UNITED  STATES  COURTS,  &c.  831 

PENNSYLVANIA. 

Hon.  Joiix  K.  Kane,  Judge,  riuladelx>fiia. 

Eastern  District. 

Philadelx>1iia — Tliird  Mondays  in  February,  May,  August 
and  November. 

John  W.  Asihiead,  District  Attorney,  Pldladelpliia. 
Anthony  E.  Roberts,  IMarshal,  Lancaster. 
George  Plitt,  Clerk  Circuit  Court,  Pldladel/pliia. 
Thomas  L.  Kane,  Clerk  District  Court,     " 

Hon.  Thomas  Irwin,  3\x(\ge^  Pittshurgh. 
Western  District. 

PiUsburcjli — First  Monday  in  May,  and  Tliird  Monday  in 

October. 
WUliamsjport — ^Third  Monday  in  June,  and  First  Monday 

in  October. 

J.  Bowman  Sweitzer,  District  Attorney,  Pittsburgh. 

John  Dicker,  Mai-slial. 

Henry  Sproule,  Clerk,  Ci\al  Court,  Pittshurgh. 

R.  B.  Roberts,  Clerk  District  Court,  Pittshurgh. 

James  Armstrong,  Clerk  District  Court,  William-sport. 


DELAWARE. 
Hon.  Willard  Hall,  Judge,  Wilmington. 

Nmv  Castle — Third  Tuesday  in  June,  and  Second  Tuesday 
in  December. 


832  APPENDIX. 


Dover — ^Tuesday  after  Third  Monday  iu  March ;  Tuesday 
after  Fourth  Monday  in  September. 

P.  Sheward  Johnsotvt,  District  Attorney,  Wilmington. 
Samuel  Bark,  Marshal,  " 

Leonard  E.  Wales,  Clerk,  " 


MARYLAND. 
Lion.  John  Glenn,  Judge,  Baltimore, 

Baltimore — ^First  Tuesdays  in  March,  June,  September  and 
December. 

Z.  Collins  Lee,  District  Attorney,  Baltimore. 
Thomas  H.  Kent,  Marshal,  " 

Thomas  Spicer,  Clerk,  " 


DISTRICT  OF  COLUMBIA. 
CIRCUIT  COURT. 

Hon.  William  Cranch,  Chief  Justice,  Washington. 
Hon.  James  Morrell,  Associate  Justice,  Georgetown. 
Hon.  James  Dunlop,  Associate  Justice,  WasJmigton 

Wasliington — ^Fourth  Monday  in  March ;   Third  Monday 
of  October. 

Philip  H.  Fendall,  District  Attorney,  Washington. 
Richard  Wallack,  Marshal,  Wasliington. 
John  A.  Smith,  Clerk,  Washington. 


UNITED  STATES  COURTS,  &c.  833 

DISTRICT  COURT, 
lion.  William  CIlA^'CIr,  Judge. 
Washington — First  Mondays  in  June  and  December. 

CRLAIINAL  COURT. 

lion.  T.  Hartley  Crawfoed,  Judge,  Wa-sliington. 

Wa-sldngton — First   Mondays  in  Marcli  and  December; 
Thii'd  Monday  in  June. 


VIRGINIA. 

Hon.  Ja^ies  D.  Hallyburton,  Judge,  New  Kent  C.  H. 

Eastern  District. 

Norfolk — Thirtieth  day  of  May  and  First  day  of  November. 
Richmonil — ^Twelftli  day  of  May  and  November. 

William  P.  Joynes,  District  Attorney,  Petersburg. 

Tiio:mas  S.  Hall,  Mai-shal,  Riclimond. 

A.  A.  CowDERY,  Clerk,  Norfolh. 

P.  ^Iayo,  Clerk,  Itichnond. 

Hon.  Joiix  W.  Brockenbrougit,  Judge,  Lexington. 
Western  District. 
Clarhshurgh — Last  Mondays  in  jMarcb  and  August. 
Wheeling — Wecbiesday  after  First  Monday  in  April  and 

September. 
Charleston — (Kanawha  County)  Wednesday  after  Second 

Mondays  in  April  and  September. 
Staunton — First  day  of  May  and  October. 
53 


834  APPENDIX. 

WijtJie  Court  IIov 6'e—FirBt  Wednesday  after  Tliird  Mon- 
days in  April  and  September. 

Benjaiviin  H.  Smith,  District  Attorney,  Charleston, 
Kanaioha  Court  House. 

James  Points,  Marslial,  Staunton. 

RiciiAKD  "W.  Moore,  Clerk,  Clarhshurgli. 

Erasmus  Stribling,  Clerk,  Staunton. 


NORTH  CAROLINA. 

Hon.  H.  Potter,  Judge,  Raleigh. 

Edenton — ^Third  Mondays  m  April  and  October. 
Ketvhern — Fourtli  Mondays  in  April  and  October. 
Wilmmgto72^-First  Monday   after  Fourtli    Mondays   in 
April  and  October. 

Hieam  W.  IIusted,  District  Attorney,  Balelgh. 

George  Little,  Marshal, 

William  H.  Haywood,  Clerk  Circuit  Court,   " 

John  M.  Jones,  Clerk  District  Court,  Edenton. 

Benjamin  W.  Brown,  Clerk  District  Court,  Newlern. 

William  E.  Anderson,  Clerk  District  Court,  Wilming- 
ton. 


SOUTH  CAROLINA. 

Hon.  Robert  B.  Gilchrist,  Judge,  Charleston. 
Eastern  District. 
Chmiestonr—T\i\Y^   Mondays  in   March  and  September; 
First  Monday  in  July,  and  Second  Monday  in  December. 


UNITED  STATES  COURTS.  &c.  835 


Westkux   I) 


i>'nncT. 


Laureihs  Court  House — Tuesday  after  adjonrninent  of  Cir- 
cuit Cuui*!  at  Columbia.  (Circuit  Court  uioetd  on 
Fourtli  Monday  in  Xoveniljer.) 

J.  L.  PE'rriGREW,  District  Attorney,  Charleston. 
Tiio:mas  D.  Condy,  Mai'slial,  Cltarleston. 
11.  Y.  Gray,  Clerk,  Cltarleston. 


GEORGIA. 
Hon.  J.  C.  NicoLL,  Judge,  Savannah. 
Northern  District. 
Marietta — Second  Monday  in  March  and  September. 

Southern  District. 

Savannah — Second  Tuesdays  in  February,  May,  August 
and  November. 

Hexry  Williams,  District  Attorney,  Savannah. 
WiLLiA^i  C.  Mills,  Marshal. 
George  Glenn,  Clerk,  Savannah. 
William  H.  Hunt,  Clerk,  Marietta. 


FLOEn)A. 

Hon.  Isaac  II.  Bronson,  Judge,  St.  Aitgustine. 
Northern  District. 

Tallahassee — Fii-st  JMonday  in  January. 
Apahivhicola — First  Monday  in  February. 


836  APPENDIX. 


Pensacola — ^First  Monday  in  Marcli. 
St,  Aiigustine — Fii'st  Monday  in  April. 

Geoege  W.  Call,  District  Attorney,  Madison. 
John  T.  Mykick,  Marshal,  Marianna. 
Geoege  E..  Faiebank,  Clerk,  St.  Augustine. 
HoBAET  H.  Hilton,  Clerk,  Tallahassee. 
Joseph  S.  Mays,  Clerk,  Apalacliicola. 
CiiAELEs  N.  JoEDON,  Clerk,  Pensacola. 

Hon.  William  Maevin,  Judge,  Key  West. 

SOUTHEEN    DiSTEICT. 

Key  West — First  Mondays  in  May  and  November. 

William  K.  Hackley,  District  Attorney,  Key  West. 
Waltee  C.  Maloney,  Marshal,  Key  West. 
TiiEODOEE  A.  PiNCKNEY,  Clerk,  Key  West. 


ALABAMA. 
Hon.  Joim  Gayle,  Judge,  Mobile. 

NOETIIEEN    DiSTEICT. 

HuntsviUe — Third  Monday  in  May,  and  Fourth  Monday 
in  November. 
Jeffeeson  F.  Jackson,  District  Attorney,  Montgomery. 
Willis  H.  Gibson,  Marshal,  Courtland. 
Benja^iin  F.  Mooee,  Clerk,  Himtsville. 

Middle  Disteict. 

Montgomery — Fourth  Monday  in  May ;  First  Monday  after 
Fourth  Monday  in  November. 


UNITED  STATES  COURTS,  &c.  837 

Jefferson  R  Jackson,  District  Attorney,  Montgcmiery. 
Charles  BiNGiiA:vr,  jVIarshal,  Mobile. 
Mait  Gayle,  Clerk,  Montgomery, 

Southern  District. 

Mohile — Fii*st  Monday  in  May,  and   Second  Monday  in 
Deconil^r. 

Peter  Hamilton,  District  Attorney,  Mohile. 
Charles  BiNOHA:yr,  JVIarslial,  Mohile. 
John  Fiti's,  Clei'k,  Mohile. 


MISSISSIPPI. 

Hon.  Sajiuel  J.  Gholson,  Judge,  Athetis. 

Northern  District. 

Pontotoc — First  Mondays  in  June  and  December. 
Woodson  L.  Ligon,  District  Attorney,  Ahenken. 
William  McQuinston,  Marshal,  " 

R.  W.  Edmonson,  Clerk,  Pontotoc. 

Southern  District. 

Jackson — Fourth  Mondays  in  June  and  January. 

Horatio  J.  Harris,  District  Attorney,  Viclcshurg. 
F.  Da^^is,  Marshal,  Woodville. 
Willia:\i  H.  Brown,  Clerk  Circuit  Court,  Jackson. 
Willia:^!  Burns,  Clerk  District  Coiu-t,  " 


838  APPENDIX. 


LOUISIANA. 

Hon.  TiiEODOKE  H.  McCaleb,  Judge,  New  Orleans. 

Eastern  District. 

New  Orleans — Third  IMondays  in  February  and  May,  and 
Second  Monday  in  December.  ^ 

Logan  Hunton,  District  Attorney,  New  Orleans. 
William  S.  Scott,  Marshal,  " 

J.  W.  GuRLY,  Clerk  Circuit  Court,  " 

X.  Iv.  Jennings,  Clerk  Dist.  Court,  " 

Hon.  Henry  Boyce,  Judge,  Alexandria. 

Western  District. 

Opdousas — First  Monday  in  August. 

Alexandria — First  Monday  in  September. 

Slireveport — ^First  Monday  in  Octoljer. 

Monroe — First  Monday  in  November. 

St.  Joseplis^  Tensas  Parlsli — First  Monday  in  December. 

Lawrence  P.  Crane,  District  Attorney,  Sltreveport. 

Frederick  Gr.  Smith,  Marshal,  St.  Joseplis. 

Charli:s  Scott,  Clerk,  Alexandria. 

Charles  J.  Mitchell,  Clerk,  Shreve/j)ort. 

Thojias  II.  Thompson,  Clerk,  Opelousas. 


TEXAS. 

Hon.  John  C.  Watrous,  Judge,  Galveston. 

Galveston — First  Monday  in  February. 

Austin — At  such  times  as  the  judge  may  direct. 


UNITED  STATES  COURTS,  &c.  839 


Tyler — At  siu-li  times  as  tlu;  judge  uuiy  direct. 
BrowiU'ville —         " 

William  P.  Ballinger,  District  Attorney,  Galveston. 

Joseph  Bates,  IVIarslial,  " 

James  Love,  Clerk, 


CALIFORNIA. 

I  Ion.  Ogdex  IIoff.max,  Jr.,  Judge,  San  Francisco. 

NoiiTiiEKX  District. 

San  J'Wnicisco — First  Mondays  in  June  and  December. 
San  Jo6e — First  Monday  in  Ai)ril. 
SoAyramento — Fii-st  Monday  in  September. 
Stockton — Second  Monday  in  October. 

Calhoun  BENirA:\r,  District  Attorney,  San  Francisco. 

David  T.  Douglass,  INIarslial,  San  Jose. 

J.  A.  Monroe,  Clerk,  San  Francisco. 

Hon.  Joseph  P.  IIealy,  Judge. 

Southern  District. 

Monterey — First  Monday  in  June. 

Los  Angelos — First  Monday  in  Deceml^er. 

Alfred  Wheeler,  District  Attorney,  San  Francisco. 
Pablo  Norieago,  Marshal,  San  Jose. 

Clerk. 
The  judges  of  l)oth  districts  may  hold  extra  sessions  of 
the  courts,  at  their  discretion. 


840  APPENDIX. 


ARKANSAS. 
Hon.  Daniel  Restgo,  Judge,  Little  Mock. 

Eastern  District. 

Little  Rock — First  Mondays  in  April  and  October. 

Absalom  Fowler,  District  Attorney,  Little  Mock. 
Luther  Chase,  Marslial,  Little  Moch. 
'VyiLLiA:\i  Field,  Clerk,  Little  Mode. 

Western  District. 

Van  Bv/ren  {Oraivford  county) — Second  Mondays  in  May 
and  jS^ovember. 
Jesse  Turner,  District  Attorney,  Van  Buren. 
George  K.  Knox,  Marslial,  " 

WiLLiAin  Field,  Clerk,  Little  Mock. 


MISSOURI. 

Hon.  Robert  W.  Welles,  Judge,  Jefferson  City. 

Jefferson  City — First  Mondays  in  March  and  September. 

John  D.  Cook,  District  Attorney,  Fredericks-town. 
John  W.  Twitchell,  Marshall,  St.  Louis. 
Benjamin  F.  Hickman,  Clerk  Circuit  Court,  St.  Louis. 
Jason  Harrison,  Clerk  District  Court,  Jefferson  City. 


UNITED  STATES  COURTS,  &c.  841 

TENNESSEE. 

lion.  MoiiGAN  W.  BuowN,  Judge,  Ka-'^h'ilh. 

Eastern  Distkict. 

Knoxville — Tliird  Mondays  in  April  and  October. 

Samuel  R.  Rogers,  District  Attorney,  KnoxmlU. 
Daniel  McCuLLu:\r,  Marshal,  Knoxville. 
James  W.  Cajipbell,  Clerk,  Knoxville. 

Mlddle  District. 

Naskville — First  Mondays  in  March  and  September. 

W.  F.  Kerciieval,  District  Attorney,  FayettevilU. 
Willia:si  M.  Brown,  Marshal,  KaslLville. 
Jacob  McGavock,  Clerk,  N^ctshville. 

Western  District. 

Jackson — Second  Mondays  in  April  and  October. 

Charles  N.  Gibbs,  District  Attorney,  Jackson. 
Andrew  Guthrie,  Marshal,  Jackson. 
James  L.  Talbot,  Clerk,  Jackson. 


KENTUCKY. 

Hon.  Thomas  B.  Monroe,  Judge,  Frankfort. 

Frankfort — Third  Mondays  in  May  and  October. 

Willia:m  II.  Caperton,  District  Attorney,  liicJunoiK.f. 
James  S.  Speed,  Marshal,  Louisville. 
John  H.  IIanna,  Clerk  Cii'cuit  Coui-t,  Frankfort. 
J.  A.  Monroe,  Clerk  District  Court,  Franlfort. 


1 


842  APPENDIX. 


OHIO. 

lion.  IlrMPiiKEY  II.  Leavitt,  Judge,  Steuhenvllle. 

Columlms — ^Tliircl  Tuesday  in  April;   Tliird  Tuesday  in 
October. 

Sa:^ison  Mason,  District  Attorney,  Sjyringfield. 
GosBOKx  A.  Jones,  Marshal,  Mount  Vernon. 
William  Minor,  Clerk,  Cohtmbus. 

INDIANA. 

Hon.  Elisha  M.  Huntington,  Judge,  Cannelton. 
ImlkuiaiJoliH — Third  Mondays  in  May  and  November. 

Hugh  O.  Neil,  District  Attorney,  Indianapolis. 
Solo:mon  Meredith,  Marshal,  Camhridge  City. 
Horace  Basseit,  Clerk,  Indianapolis. 


ILLINOIS. 

Hon.  T.  DRi'^L^roND,  Judge,  Galena. 

Springfield — First  Monday  in  July  and  Third  ]\Ionday  In 

December. 
Chicago — First  Tuesday  in  October  and  Tliird  Tuesday  in 
April. 

Archibald  Williams,  District  Attorney,  (2uincy. 
Benjamin  Bond,  Marshal,  Carlysle. 
William  Poi'e,  Clerk,  Springfield. 


UNITED  STATES  COURTS.  &c.  843 

MICHIGAN. 
IIox.  Koss  WiLKi.xs,  Judge,  Vttrult. 

Detroit — 'riiird  Moiulay  in   June,  and  Second  Monday  in 
October. 

George  C.  Bati^^,  District  Attorney,  Detroit, 
Chakles  H.  Knox,  Mai-shal,  Centreville. 
Willia:\i  1).  WiLKiNS,  Clerk,  Detroit. 


WISCONSIN. 

Hon.  Andkew  G.  Miller,  Judge,  Mllwaiikee. 

Madimn — Fii-st  Monday  in  July. 
Milwmihee — First  Monday  in  January. 

George  W.  Lakin,  Dist.  Attorney,  IHattevUle.,  Grant  Co. 

Lister  II.  Coltox,  Marshal,  Milwaul-ee. 

Georcje  S.  West,  Clei'k,  Milwaukee. 


IOWA. 

Hon.  Jonx  J.  Dyer,  Judge,  Duluque. 

Northern  District. 
Diihuqjie — First  Monda\'  in  January. 
Middle  District. 
Iowa  City — Fii'st  Monday  in  October. 
Southern  District. 
Burlington — First  Monday  in  June. 

Stephen  Whicher,  District  Attorney,  Muscat ine. 
Stephen  B.  Shelladay,  Marshal,  Oscahosa. 
T.  S.  Parvin,  Clerk,  Mu^hitine. 


844  APPENDIX, 


TERRITORIES. 


OEEGOK 

Hon.  Thomas  Nelson,  Chief  Justice,  Oregon  City. 
Hon.  William  Strong,  Associate  Justice,       " 
Hon.  W.  C.  Pratt,  Associate  Justice,  " 

Territory  divided  into  tliree  Districts,  in  which  courts 
are  to  be  held  as  may  be  provided  by  law. 

An  annual  term  of  the  Supreme  Court  at  the  seat  of 
government. 

Amory  Holbrook,  District  Attorney,  Oregon  Olty. 

Joseph  L.  Meek,  Marshal,  Oregon  City. 
Clerk 


MINNESOTA. 

Hon.  Jerome  Fuller,  Chief  Justice,  St.  Paul. 

Hon.  Da\t:d  Cooper  Associate  Justice,     " 

Hon.  Bradley  B.  Meeker,  Associate  Justice,  8t.  Paul. 

Territory  divided,  and  courts  held  as  in  Oregon. 

Henry  L.  Moss,  District  Attorney,  Stillwater. 
J.  W.  FuRBUR,  Marshal,  Cottage  Grove. 
Clerk. 


UNITED  STATES  COURTS,  &c.  845 

UTAH. 

Hon.  Samuel  G.  Branderberry,  Cliief  Justice,  Salt 

LaTce. 
Hon.  Zerubable  Snow,  Associate  Justice,  Salt  Lake. 
Hon  Perry  E.  Brociius,  Associate  Justice,         " 
Territory  divided,  and  courts  held  as  in  Oregon. 

Setu  Blair,  District  Attorney,  Salt  Lake. 
Joseph  L.  Haywood,  Marshal,         " 


NEW  MEXICO. 

Hon.  Grafton  Parker,  Chief  Justice,  Santa  Fe. 
Hon.  Horace  Mower,  Associate  Justice,       " 
Hon.  John  S.  Watts,  Associate  Justice,         " 

Territory  divided,  and  courts  held  as  in  Oregon. 

Elias  p.  West,  Disti-ict  Attorney,  Santa  Fe. 
John  Jones,  Mai-shal,  " 


ERRATA. 

Page  8 ; 

5th  line  from  bottom 

for 

'  3  Cond.  440, 

'  read  3  Cond.  460. 

"     26 ; 

5th  line  from  top, 

for 

'  2  Pet.  567," 

read  1  Pet.  567. 

"     31; 

9th  line  from  top, 

for 

'Ch.  527," 

read  Ch.  257. 

"    45; 

note. 

for 

'4  Cond." 

read  4  Cond.   119. 

"    46; 

5th  line  from  bottom 

for 

'  Court," 

read  Cases. 

"  174; 

bottom  lino, 

for 

'110," 

read  106. 

"  227  ; 

bottom  of  page. 

for 

"  1838,  ch.  31, 

'  read  1839,  ch.  31. 

"  261  ; 

7th  line  from  top. 

for 

'  ch.  35," 

read  ch.  55. 

"  526 ; 

top  line, 

for 

"56,   58," 

read  67,  68,  69,  71 

"  567 

4th  line  from  top, 

for 

"  heads," 

read  liands. 

LITTLE  &  COMPANY, 
£avo  Booksellers  aub  Pubiioljcrs, 

53  STATE  STREET,  ALBANY, 

Invite  the  Jittcntion  of  the  Legal  Profession  to  flicir  extensive  Stock  of 

LAW  BOOKS  AND  STATIONERY. 

For  Sale  on  Liberal  Terms. 


IMPORTANT  NEW  LA  W  BOOKS. 


JUDGE  HAYDEN'S  NEW  PRACTICE  AND  FORMS. 

The  Practice  of  the  Courts  of  tliis  State,  adajUcd  to  the  Code  of  Pro- 
cedure, as  amended  by  the  Act  of  April  11,  1849;  with  the  Rules  of  the 
Supreme  Court,  adopted  at  the  Convention  of  Judges,  on  the  first  of 
August — to  whicli  is  added  a  copious  Appendix  of  Practical  Forms — in 
1  vol.,  octavo :  By  Chester  Hayden,  Counsellor  at  law. 


JUDGE  HAYDEN'S  NEW  PRACTICE  AND  FORMS, 
For  the  JUSTICES'  COURTS  of  the  Stateof  New-York— one  vol.,  8vo: 
By  Chester  Hayden,  Counsellor  at  Law, 


REVISED  STATUTES. 
Third  Edition — now  ready,    Revised  Statutes  of  New- York,  in  three 
volumes,  octavo — prepared  by  tlie  Hon.  Joim  C.  Spencer.     This  edition 
contains  the  Laws  of  tlie  State  of  New- York,  passed  during  tlie  last 
twenty  years. 


BARBOUR'S  REPORTS 

Of  the  Supreme  Court  of  the  State  of  New- York.     Volume  four  now 
ready — price  $3.50. 


Little  Sf  Co.^s  Law  Catalogue 


JUDGE  CONKLING'S  ADMIRALTY. 

Just  published  by  the  subscriber,  the  Jurisdiction,  Law,  Practice,  Plead- 
ings, and  Forms  of  the  Court  of  Admiralty  of  the  United  States :  By  Hon. 
Alfred  Conkling,  U.  S.  Judge  of  the  Northern  District  of  New-York. 


COMSTOCK'S  REPORTS. 

The  Reports  of  the  Court  of  Appeals  of  the  State  of  New- York:  By 
G.  F.  Comstock,  Esq.,  Reporter.  Price  for  the  two  volumes,  complete 
and  bound  in  calf,  $2-50  per  vol. 


PAIGE'S  CHANCERY  REPORTS. 

Volume  XI.  Reports  of  Cases  argued  and  determined  in  the  Court 
of  Chancery  of  the  State  of  New- York :  By  Alonzo  C.  Paige,  Counsellor 
at  Law.     Calf. 


THE  SESSION  LAWS  FOR  1849. 

The  Laws  of  New- York,  with  the  Certificate  of  the  Hon  Christopher 
Morgan,  Secretary  of  State,  (without  which  no  copy  is  legal,)  that  the 
said  volume  was  printed  under  his  direction,  according  to  law.  (See 
Laws  of  1843,  chap.  98.) 


HON.  JUDGE    STORY'S   WORKS. 


COMMENTARIES  ON  THE  LAW  OP  BAILMENTS, 
With  Illustrations  from  the  Civil  and  the  Foreign  Law :  By  Joseph  Story, 
LL.  D.,  one  of  the  Justices  of  the  Supreme  Court  of  the  United  States, 
and  Dane  Professor  of  Law  in  Harvard  University.    Fourth  edition — re- 
vised, corrected,  and  enlarged. 


COMMENTARIES  ON  THE  CONSTITUTION 

Of  the  United  States — with  a  Preliminary  Review  of  the  Constitutional 
History  of  the  Colonies  and  States,  before  the  adoption  of  the  Constitu- 
tion :  By  Joseph  Story,  LL.  D. 


Little  ^  Co.'s  Law  Catalogue. 


COMMENTARIES  ON  THE  CONFLICT  OF  LAWS, 

Foreign  and  Domestic,  in  regard  to  Contracts,  Riglits,  and  Remedies, 
and  especially  in  regard  to  Marriages,  Divorces,  Wills,  SuccesBions,  and 
Judgments:  By  Josepli  Story,  LL.  D.  Third  edition— revised,  corrected 
and  greatly  enlarged. 

COMMENTARIES  ON  EQUITY  JURISPRUDENCE, 
As  Administered  in  England  and  America:   By  Joseph  Story,  LL.  D. 
Fourth  edition— revised,  corrected  aud  enlarged. 


COMMENTARIES  ON  THE  LA^W  OF  AGENCY, 
As  a  Branch  of  Commercial  and  Maritime  Jurisprudence,  with  Occa- 
sional Illustrations  from  the  Civil  and  Foreign  Law:  By  Joseph  Storj', 
LL.  D.     Thii-d  edition— revised,  corrected  and  enlarged. 

COMMENTARIES  ON  THE  LAW  OF  PARTNERSHIP, 
As  a  Branch  of  Commercial  aiid  Maritime  Jurispnidence,  with  Occa- 
sional Illustrations  from  the  Civil  and  Foreign  Law:  By  Joseph  Story, 
LL.  D.    Second  edition. 

COMMENTARIES  ON  THE  LAW  OF  BILLS  OF  EXCHANGE, 

Foreign  and  Inland,  as  Administered  in  England  and  America,  with 
Occasional  Illustrations  from  the  Commercial  Law  of  Nations  of  Conti- 
nental Europe :  By  Joseph  Story,  LL.  D.     Second  edition. 


COMMENTARIES  ON  EQUITY  PLEADINGS, 
And  the  Incidents  thereto,  according  to  the   Practice  of  the  Courts  of 
Equity  of  England  and  America:  By  Joseph  Siorj',  LL.  D.     Third  edi- 
tion— revised,  corrected  and  enlarged. 

COnXIVISM'TAItlBS  ON  THE  LAW  OP  FROKISSOR'Sr  NOTES, 

Aiul  Guarantees  of  Notes,  and  Checks  on  Banks  and  Bankers,  with  Oc- 
casional Illustrations  from  the  Conmicrcial  Law  of  tiie  Nations  of  Con- 
tinental Europe :  By  Joseph  Story,  LL.  D.  Second  edition— corrected 
and  enlarged. 


Little  ^'  Co.^s  Law  Catalogue. 


JUST   P  UB  LISHE  D 


ANGELL  ON  COMMON  CARRIERS. 

A  Treatise  on  the  Law  of  Carriers  of  Goods  and  Passengers,  by  Land 
and  Water :  By  Joseph  K.  Angell.     One  vol.,  3vo. 


GREENLEAF'S  CRUISE  ON  REAL  PROPERTY. 

The  first  vohirne  of  Cruise's  Digest  of  the  Law  of  Real  Property,  re- 
vised and  considerably  enlarged,  by  Henry  Hoplcy  White,  Esq. ;  further 
revised  and  abridged,  with  additions  and  notes,  ibr  the  use  of  American 
Students:  By  Simon  Greenleaf,  LL.  D.    Three  vols.,  royal  8vo. 


A  TREATISE  ON  THE  LAW  OF  PATENTS, 
For  Useful  Liventions  in  the  United  States  of  America,  and  the  Reme- 
dies for  their  Infringement:    By  George  Ticknor  Curtis,  Counsellor  at 
law. 


ANGELL  ON  WATER  COURSES. 

Treatise  on  the  Cmmon  Law  in  relation  to  Water  Courses :  By  Joseph 
K.  Angell.    New  and  fourth  edition — ^revised  and  greatly  enlarged. 


DAVEIS'S  REPORTS. 

Reports  of  Cases  determined  in  the  District  Court  of  the  United  States 
for  the  District  of  Mame,  with  some  Opinions  of  the  District  Judge,  in 
Cases  determined  in  the  Circuit  Court,  1839 — 1849 :  By  Edward  H.  Da- 
veis.    8vo ;  law  sheep.    $3-50. 


CUTITIS  ON  COPYRIGHT. 

A  Treatise  on  the  Law  of  Copyright  in  Books,  Di*amatic  and  Musical 
Compositions,  Letters  and  other  Manuscripts,  Engravings  and  Sculpture, 
as  administered  in  England  and  America;  with  some  Notices  of  the  His- 
tory of  Literary  Property :  By  George  T.  Curtis.    8vo. 


Little  ^  Co.'s  Law  Catalogue. 


GREENLEAF  ON  EVIDENCE. 

A  Treatise  on  tlic  Law  of  Evulcnce:  By  Simon  Greenlealj  LL.  I)., 
Royall  Professor  of  Law  at  Harvard  University.  Third  edition.  2  vols. ; 
royal  8vo. 

ANGELL  AND  AMES  ON  CORPORATIONS. 

Treatise  on  the  Law  of  Private  Corporations  Aggregate :  By  Joseph 
K.  Augell  and  Samuel  Ames.     Third  edition.     8vo. 


JARMAN  ON  WILLS. 

A  Treatise  on  Wills,  with  a  copious  Dissertation  on  the  Construction 
of  Devises:  By  T.  Jarmun.  With  Notes  and  References  to  American 
Law:  By  J.  C  Perkins,  Esq.    2  vols.,  8vo. 


COLLYER  ON  PATNERSHIP. 

A  Practical  Treatise  on  the  Law  of  Partnership ;  with  an  Appendix  of 
Forms:  By  John  Collyer.  Third  American,  from  the  second  English 
Edition;  with  large  Additions  to  the  Text  and  Notes:  By  J.  C.  Perkins. 
Thick  8vo. 


ABBOTT  ON  SHIPPING. 
A  Treatise  of  the  Law  relative  to  Merchant  Ships  and  Seamen ;  in  five 
Parts:  By  Charles,  Lord  Tenterden,  late  Chief  Justice  of  England.  The 
seventh  English  edition,  by  William  Shee,  Serjeant  at  Law.  The  tifth 
American  edition,  with  the  Notes  of  Mr.  Justice  Story,  and  additional 
Annotations,  by  J.  C.  Perkins,  Esq. 


HOWARD'S  SUPREME  COURT  REPORTS. 

Reports  of  Cases  Argued  and  Determined  in  the  Supreme  Court  of 
the  United  States,  January  Term,  184G-7:  By  Benjamin  C.  Howai-d, 
Counsellor  at  Law,  and  Rcponer  of  the  Decisions  of  the  Supreme  Court 
of  the  United  States.     Vols.  IV,  V,  and  VL 


Little  &;  Co.'s  Law  Catalogue. 


MASSACHUSETTS  REPORTS. 

Tyug's  Reports  of  Cases  in  the  Supreme  Judicial  Court  of  Massachu- 
setts, from  1804  to  1822:    By  Ephraiin  Williams.     Vol.  I.     17  vols.,  8vo. 


PICKERING'S  REPORTS. 

Reports  of  Cases  in  the  Supreme  Judicial  Court  of  Massachusetts, 
from  1822  to  1841 :   By  Octavius  Pickering.     24  vols.,  octavo. 


METCALF'S  REPORTS. 

Reports  of  Cases  Argued  and  Determined  in  the  Supreme  Judicial 
Court  of  Massachusetts,  from  1840  to  1846:  By  Theron  Metcalf.  11 
vols.,  octavo. 


VESEY'S  REPORTS. 

Reports  of  Cases  Argued  and  Determined  in  the  High  Court  of  Chan- 
cery, from  the  year  1789  to  1817,  with  a  Digested  Index:  By  Francis 
Vesey,  Jr.,  Esq.,  of  Lincoln's  Inn,  Barrister  at  Law.  From  the  last  Lon- 
don edition ;  with  the  Notes  of  Francis  Vesey,  Jr.,  Esq.,  and  the  Exten- 
sive Annotations  of  John  E.  Ilovenden,  Esq.,  of  Gray's  Inn,  Barrister  at 
Law.  The  whole  edited,  with  Notes  and  References  to  American  Law, 
and  subsequent  English  Decisions:  By  Charles  Sumner  and  J.  C.  Per- 
kins, Esqrs.     20  vols.,  octavo. 


UNITED  STATES  EQUITY  DIGEST. 

In  active  preparation,  and  will  soon  be  ready,  a  Digest  of  all  the  Re- 
ports in  Equity,  decided  in  the  United  States  Courts,  and  in  the  Courts 
of  the  several  States,  from  the  earliest  period  to  the  present  time.  In 
one  volume,  royal  octavo — corresponding  with  the  United  States  Digests 
of  Common  Law  and  Admiralty  Reports,  by  Messrs.  Metcalf,  Perkins, 
Curtis,  and  Putnam ;  and  forming,  with  that,  a  complete  Digest  of  all 
the  Reports  to  1847 — from  which  'period  Mr.  Putnam's  Annual  Digest 
will  include  the  Common  Law,  Admiralty,  and  Equity  Reports :  By  John 
Phelps  Putnam,  of  the  Boston  Bar. 


Little  Sf  Co.^s  Law  Catalogue. 


THE  ANNUAL  SUPPLEMENT  TO  THE  UNITED  STATES 
DIGEST  FOR  1847. 

A  Supplement  to  the  United  States  Digest;  being  a  Digest  of  Decis- 
ions of  the  Courts  of  Common  Law  and  Admirahy  in  the  United  States, 
to  1848,  not  previously  digested  in  the  first  five  volumes :  JJy  John  Phelps 
Putnam,  of  the  Boston  Bar.     1  vol.,  royal  Bvo. 


UNITED  STATES  STATUTES  AT  LARGE. 

SESSION  LAWS. 
Public  Laws  of  the  United  States  of  America,  passed  at  the  First  and 
Second  Sessions  of  the  Twenty-nicth  Congress,  1845-1847,  and  the 
First  Session  of  the  Thirtieth  Congress,  1847-48.  Carefully  collated 
with  the  Originals  at  Washington :  Edited  by  George  Minot,  Counsellor 
at  Law.     In  two  Parts ;  royal  octavo. 


INDEX  OF  CASES. 

An  Index  of  the  Names  of  all  the  Cases  in  the  three  volumes  of  the 
United  States  Digest,  and  the  two  volumes  of  the  Supplement,  Alpha- 
betically arranged,  with  References  for  each  Case,  to  the  volume  and 
page  of  the  Reports  whence  the  Case  is  taken,  and  to  the  volume  and 
page  of  the  Digest  where  it  is  found — thus  making  an  Index  of  Cases, 
as  well  for  all  the  Reports  in  the  United  States,  as  for  the  United  States 
Digest.     1  vol.,  8vo. 


WOODBURY  AND  MINOT'S  REPORTS,  VOL.  11. 

Reports  of  Cases  argued  and  determined  in  the  Circuit  Court  of  the 
United  States  for  the  First  District:  [By  Charles  L.  Woodbury  and  Geo. 
Minot     Vol.  U. 


WEBSTER'S  DICTIONARY. 

Price  reduced  to  Six  Dollars.  The  entire  work,  unabridged,  in  one 
volume;  crown  quarto,  of  1452  pages — containing  all  tiie  matter  of  Dr. 
Webster's  original  work,  his  improvements,  up  to  the  time  of  his  death, 
and  now  thoroughly  revised,  and  greatly  enlarged  and  improved:  By 
Professor  Chauncey  A.  Goodrich,  of  Yale  College. 


Little  ^  Co.'s  Law  Catalogue. 


CURTIS'S  EQUITY  PRECEDENTS. 

Equity  Precedents,  designed  to  illustrate  and  accompany  Mr.  Justice 
Story's  Treatise  on  Equity  Pleadings:    By  George  T.  Curtis. 


LIFE  AND  TIMES  OF  GRATTAN. 

Memoirs  of  the  Life  and  Times  of  the  Rt.  Hon.  Henry  Grattan :  By 
his  son,  Henry  Grattan,  Esq.     5  vols.,  8vo ;  Portrait,  cloth,     $7*50. 


BROUGHAM'S  STATESMEN. 

Historical  Sketches  of  Statesmen  who  flourished  in  the  time  of  George 
III.;  to  which  are  added  Remarks  on  the  French  Revolution:  By  Lord 
Henry  Brougham.     Third  series ;  8vo,  cloth.     $2*00. 


NORTH'S  LIVES. 

The  Lives  of  the  Rt.  Hon.  Francis  North,  Baron  Guilford,  Lord  Keep- 
er of  the  Great  Seal;  the  Hon.  Sir  Dudley  North ;  and  the  Hon.  and  Rev. 
John  North — with  Notes  and  Illustrations,  Historical  and  Biographical: 
By  the  Hon.  Roger  North.    3  vols.,  8vo ;  cloth.     $7-50. 


BROUGHAM'S  SPEECHES. 

Speeches  of  Hemy,  Lord  Brougham,  upon  Questions  I'elating  to 
Public  Rights,  Duties,  and  Interests ;  with  Historical  Introductions,  and 
a  Critical  Dissei'tation  upon  the  Eloquence  of  the  Ancients.  4  vols., 
8vo;  cloth.     $8-00. 


PITT'S  SPEECHES. 

The  Speeches  of  the  Rt.  Hon.  William  Pitt,  in  the  House  of  Com- 
mons.    4  vols,,  8vo ;  calf.     SKvOO. 


HARRIS'S  LIVES. 

An  Historical  and  Critical  Account  of  the  Lives  and  Writings  of  James 
L  and  Charles  L;  and  of  the  Lives  of  Oliver  Cromwell  and  Charles  IL: 
By  William  Harris.    ,5  vols.,  8vo ;  half  morocco.    $18-00. 


lAttle  Sf  Go's  Imw  Catalogue. 


TYRRELL'S  ANTIENT  CONSTITUTION. 

An  Inquiry  into  tiic  Antient  Constitution  of  the  English  Government, 
with  Respect  to  the  Just  Extent  of  the  Regal  Power,  and  the  Rights  and 
Liberties  of  the  Subject :  By  James  Tyrrell.  Folio;  old  calf.  London, 
1718.     $3-50. 


PUFFENDORF'S  LAW  OF  NATURE. 

The  Law  of  Nature  ajid  Nations;  or,  a  General  System  of  the  most 
important  Principles  of  Morality,  Jurisprudence,  and  Politics:  By  Baron 
Puffendorf;  with  Notes,  by  Barbeyrac.  Folio;  old  calf.  London,  1747. 
$13-50. 


BURLAMAQUI'S  NATURAL  LAW. 

The  Principles  of  Natural  and  Politic  Law:  By  J.  J.  Burlamaqui.  2 
vols.,  8vo ;  calf.     $2*25. 

JURISPRUDENTIA  ROxMANA  ET  ATTICA: 

Continens  varios  Conuneutatores,  Qui  Jus  Romanum  et  Atticum: 
Item  Classicos  aliosque  Auctores  Veteres  emendarunt,  explicarunt,  illus- 
trarunt,  cum  Priefatione:  Jo.  Gottl.  Heineccii.  3  vols.,  folio;  vellum. 
Lugduui  Batavorum,  1738.     Very  fine  copy.     $21-00. 

HOWELL'S  STATE  TRULS. 

A  Complete  Collection  of  State  Trials  and  Proceedings  for  High 
Treason,  and  other  Crimes  and  JMisdemeanors,  from  the  earliest  period 
to  the  year  1784;  with  Notes  and  other  Illustrations:  Compiled  by  T.  B. 
Howell,  Esq.    21  vols.,  royal  8vo;  neat  half  calf.     $40-00. 


HISTORY  OF  THE  SIEGE  OF  BOSTON. 

History  of  the  Siege  of  Boston  and  of  the  Battles  of  Lexington,  Con- 
cord, and  Bunker  Hill.  Also,  an  Account  of  the  Bunker  Hill  Monu- 
ment, with  Illustrative  Documents;  Embellished  with  sixteen  Maps  emd 
Engravings :  By  Richard  Frotliingham,  Jr.     8vo ;  cloth.     $2-25. 


10  Little  Sf  Co.'s  Law  Catalogue. 


BUCKINGHAM'S  SKETCHES. 

Sketches  of  Newsjiaper  Literature,    with  Personal  Memoirs,  Anec- 
dotes, and  Reminiscences:  By  Joseph  T.  Buckingham. 


EVERETT'S  ORATIONS. 

A  Revised  Edition  of  the  Volume  of  Everett's  Orations,  published  in 
1836;  together  with  a  second  volume,  comprising  the  Orations  and  Ad- 
dresses since  delivered  by  the  same  author. 


GROTIUS  ON  WAR  AND  PEACE. 

The  Rights  of  War  and  Peace,  in  three  Books ;  wherein  are  explained 
the  Law  of  Nature  and  Nations,  and  the  principal  Points  relating  to  Gov- 
ernment: By  Hugo  Grotius.  Notes  by  J.  Barbeyrac.  Folio,  best  edi- 
tion;  old  calf.     London,  1838.    $12'00. 


SIDNEY  ON  GOVERNMENT. 

Discourses  Concerning  Government:  By  Algernon  Sidney,  Esq.  To 
which  are  added  Memoirs  of  his  Life.  Foho;  Portrait:  old  calf.  Lon- 
don' 1751,     $375. 


DUGDALE'S  ORIGINES  JURIDICALES; 

Or,  Historical  Memorials  of  the  English  Laws,  Courts  of  Justice, 
Terms  of  Ti7al,  Punishment  in  Cases  Criminal,  Law  Writers,  Law 
Books,  Grants  and  Settlements  of  Estates,  Degree  of  Sergeant  Innes  of 
Court  of  Chancery.  Also,  a  Chronologie  of  tlie  Lord  Chancellors  and 
Keepers  of  the  Great  Seal,  Lord  Treasurers,  Justices  Itinerant,  Justices 
of  the  King's  Bench  and  Common  Pleas,  Barons  of  the  Exchequer, 
Masters  of  the  Rolls,  King's  Attorneys  and  Solicitors,  and  Serjeants  at 
at  Law:  By  William  Dugdale,  Esq.   Folio;  old  calf    Savoy,  17GL    $15. 


BECCARIA  ON  CRIMES. 
An  Essay  on  Crimes  and  Punishments.    Translated  from  the  Italian. 
8vo;  calf     $1-25. 


LITTLE   &  GO'S 


Al)l)ott  on  Shipping,  new  edition.         Barbour  and  Harrington's  Equity  Di- 
Adams  on  Ejectment,  new edtion,  by  gcst,  (English  and  American  Ca- 

Tillin^'liust,  ses,)  .3  vols.,  183(i. 

Abridirtucnt  of  American  Reports,  by  IJarboin's  Chancery  Rej)orts,  3  vols. 

Wiieclcr,  8  vols.  Barbonrs   Supreme  Court    Reports, 

Addison  on  Contracts.  4  vols. 

Adinirahy  Decisions,  2  vols.  Barbour's  Law  of  Set-ofF. 

Allen  on  Mortgages — in  press.  Barton  on  Equity. 

Allen  on  Sheriffs.  Barnewall  and  Alderson's  Reports, 

Ambler's  Reports,  2  vols,  royal  8vo.  4  vols. 

AmericanChancery  Digest,  by  Camp-  Bayley  on  Bills  of  Exchange. 

bell  and  Carnbreling.  Bay's  South  Carolina  Reports,  2  vols. 

American  Constitutions,  12mo.,  new  Beamcs's  Lex  ^lercatoria,  2  vols. 

edition.  lieames's  Pleas  in  Equity. 

American  Jurist,  new  series,  10  vols.,  Bcames's  Ne  Exeat  Regno. 

1838-42.  Beccaria  on  Crimes. 

American  Railroad  Laws,  (Summary  Beck's  Medical  Jin-is{)rudence,  2  vols. 
of") — in  press.  Beebee's  Questions  adapted  to  Gra- 

Angell  on  Common  Carriers.  ham's  Practice. 

Angell  on  Water  Courses — 1850.  Bee's  S.  C.  Admiralty  Reports. 

Angell  on  Tiile  Waters.  Bell   on   Husband  and  Wife — Lon- 

Angeil  on  Adverse  Enjoyment.  don,  181S>. 

Angell  on  Limitations.  Belt's  Supplement  to  Vesey  Senior's 

Angell  and  Ames  on  Coqtorations.  Ciiancery  Reports. 

Anthon's  Nisi  Prius  Reports.  Benecke  and  Stevens  on  Insurance 

Anthon's  Analysis  of  Blackstone.  by  Phillips. 

Andrews's  Rei)orts,  (King's  Bench.)     Bigelow's   Digest  of  Massachusetts 
Archbold's  Practice  of  the  Court  of  Reports. 

King's  Bench,  2  v.,  new  ed.  Bingham  on  Infancy  and  Covertm-e. 

Archl)f>ld's   Criminal   Pleading    and   Blackstone's  (Henry)  Reports,  2  vols. 
Evidence.  Blackstone's  (Sir  William)  Reports,  3 

ArchboUI's  Civil  Pleading.  vols. 

Archbold's  Forms  and  Entries.  Blackstone's  Commentaries,  byWen- 

Archbold's  Nisi  Prius.  dell,  4  vols. 

Atkyn's  Reports,  3  vols.,  by  Sanders.  Blackstone's  Commentaries,  by  Chit- 
Attorney's  Comi)anion.  ty,  2  vols. 
Aziuii's  Maritime  I^aw,  2  vols.              Blake's  Chancery  Practice. 
Backus's  Digest  of  Laws  relating  to  Blunt's  Commercial  Digest. 

Siierirt",  2  vols.  Booth  on  Real  Actions. 

Bacon's  Abridgement,  7  vols.  Booth's  Suit  at  Law. 

Baldwin's    Circuit  Coiu't   Reports —  Bosanquet   and   Puller's   Reports,  5 

continuation  of  Washington.  vols. 

Ballentine  on  the  Statute  of  Liinita-   Bourier's  Law  Dictionarv,  2  vols, 
tions,  with  notes  and  additions,  Brady  on  Wills,  thin  8vo.,  bds. 
by  Tillinghast.  Branche's  Principia. 


12  Little  and  Co.^s  Law  Catalogue. 


tj' 


Bridjiniaii's  Equity  Digest,  4  vols.         Coke  Abridged,  by  Diinlap. 
Brown's  Crises  in  Parliament,  8  vols.    Collyer  on  Partnership,  by  Perkins. 
Brown's  Civil  and  Admiralty   Law,  Coleman  and  Gaines's  N.  York  Cases, 

2  vols.  Commercial  Code  of  France. 

Brown's  Chancerv  Reports.  COMSTOCK'S  REPORTS  OF  N. 

Brockenbrough's  "l^^ports,  (Chief  Jus-  YORK  COURT  OF  APPEALS, 

tice  jMarshall's  Decisions,)  2  vols.  2  vols. 

Bidlard  and  Cmry's   Louisiana  Di-  Comyn's  Reports. 

gest.  Comyn's  Digest,  by  Hammond,  8  v. 

Buller's  Nisi  Prius.  Coniyn  on  Contracts. 

Bunbury's  Reports.  Conkling's  Practice  of  the  U.  States 

Burire  on  Law  of  Sm-etysliip.  Courts. 

Burrill's  (Alexander  M.)  New  Law  CONKLING'S  ADMIRALTY  JU- 
Dictionary,  1  large  super-royal  RISDICTION  AND  PRACTICE. 
8vo.  vol.— in  press.  Cooper's  (Judge)  Oi)inion — Admiral- 

Burrill's  Practice,  3  vols.  ty  Case. 

Burrows's  Reports,  (King's  Bench,)  5  Cooper's  Institutes  of  Justinian. 

vols,  in  2.  Cooper's  Chancery  Cases. 

Burns's  Justice,  4  vols.  Cooper's  Equit>'  Pleading. 

Burlamaqui's  Natural  &-  Politic  Law,  Corpus  Juris  Civilis,  3  vols.,  royal 

2  vols.,  new  ed.  8vo — Leipsic. 

Burr's  trial,  2  vols.  Coventry  and  Hughes's  Digest,  2  vols. 

Butler's  Horse  Juridicsp.  Cowen's  New-York  Justice,  2  vols. 

Bynkershoek's  Law  of  War,  by  Du-  Cowen's  New-York  Reports,  (cont.  of 

ponceau.  Johnson,)  9  vols. 

CAINES' NEW-YORK  TERM  RE-  Cowper's  Reports,  (King's  Bench,) 

PORTS,  3  vols.  2  vols. 

Caines's  Cases  in  Error,  2  vols,  in  1.       Coxe's  New  Jersey  Reports. 
Caldwell  on  Arbitration.  Coxe's  Digest  United  States  Reports. 

Campbell's  (Lord)  Lives  of  the  Lord  Cranch's  Reports,  9  vols.,  (Supreme 
Chancellors  and  Keepers  of  the       Court  United  States.) 
Great  Seal  of  England,  7  v.,  8vo.  Cruise  on  Real  Property,  by  Simon 
Campbell's  (Lord)  Lives  of  the  Chief  Greenleaf,  3  vols.,  new  edition. 

Justices  of  England,  2  vols.,  8vo.  Crabb's  History  of  the  English  Law. 
Campbell's  Nisi  Prius  Reports,  4  vols.  Curtis  on  the  Law  of  Copyright. 
Chambers's  Landlord  and  Tenant.       Curtis  on  the  Law  of  Patents. 
Chandler's  American  Criminal  Trials,  Curtis  on  the  Rights  and  Duties  of 

2  vols.,  12mo.  Merchant  Seamen. 

Chitty's  Medical  Jurisprudence.  Cushing's  Massachusetts  Reports,  vol. 

Chitty's  Criminal  Law,  3  v.,  new  ed.  1 — continuation  of  Metcalf. 

Chitty's  Pleadings,  3  vols.  Dallas's  Re|)orts,  4  vols. 

CHltTY     ON    BILLS     OF     EX-  Daniels's  Chancery  Practice. 

CHANGE,  &c.  Day's  Connecticut  Reports,  5  vols. 

Chitty's  General  Practice,  3  vols.  Dayton's  Surrogate. 

CHITTY  ON  CONTRACTS.  Debates  on  the  Adoption  of  the  Fed- 

Chitty's  Medical  Jurisprudence.  eral    Constitution   Reported   by 

Chiprnan  on  Government.  James  Madison,  vol.  5 — supple- 

Christison  on  Poisons.  ment  to  Elliott. 

City  Hall  Recorder,  6  vols,  in  3.  Debates  in  the  New-York  State  Con- 

Clancy's  Rights  of  Married  Women.  vention  for  the  Revision  of  the 

Clerk's  Assistant,  new  ed.,  enlarged.  Constitution,  in  the  year  1846. 

Clerk'a  New-York  Digest,  4  vols.,  new  Delolme  on  the  English  Constitution, 
edition — in  i)ress.  Digest  of  New-York  Reports,  2  vols. 

Code  Napoleon,  translated.  Denio's  New- York  Reports,  4  vols. 

Coke  upon  Littleton,  3  v.,  by  Thomas.  Doctrina   Placitandi,    or   System   of 
Coke's  Reports,  7  vols.  Pleading. 


Little  Sf  Co's  Law  Catalogue.  13 


Doiif^las's  Ke|)oits,  '^  voLs.  (iraliuni  on  New  TrialH. 

Diittoii's  Coiim-ciiciit  Dijjest.  (jtraliam's    Practict;  of  tlio    Sujironic 

J)iiiila|)'s  Adrniially  I'ractice.  Court  ol"  New-York. 

Diinilord  and  least's  Reports,  8  vola.  Gresley's  Kcjiiity  Kvideiice. 

Diipoiiccau  (ill  Jurisdiction.  Greenltjaf's   Overruled    Cases,    new 

Dyer's  l{e|)orts,  3  vols.  edition. 

East's  K('|)orts  by  l^ay,  10  vols.  Greenlcat's  Law  of  Evidence,  2  vols., 

East's  Crown  Law,  2  vols.  new  edition. 

Eden  on  JnJMnctions.  Griffith's  Law  Register,  2  vols. 

Edwards's  Ciiancery  Re|)orts.  Gritn's  Essay. 

Edwards  on  Parlies  to  liilis  in  Chan-  (Jny's  Eoietis. 

eery.  Hale's  (Sir   IMatliew)    Tleaa  of  the 
Edwar(ls's  Treat,  on  Justices' Courts.  Crown,  2  vols. 

Edwards's  Jiuy man's  Guide.  Hale's   (Sir  Matliew)   History  of  the 
Elliott's  Debates  in  the  Several  States,  Enjrlisii  Common  I^aw. 

on  the   Adoption  of  the  Federal  Hall's  Admiralty  Practice. 

Constitution,  4  vols.,  and  Sup'nt.  Hall  on  Maritime  Loans. 

Emerigon  on  Bottomry  and  Respon-  Hall's  Re|)orts  of  the  Superior  Court 

dentia.  of  New  York,  2  vols. 

English  Common  Law  Reports,  57  Hall's  (IJ.  E.)  Trial  of  Freertian. 

vols,  in  1(5.  Halsted's  New  Jersey  Reports,  7  vols. 

English  Chancery  Reports,  18  vols.  Halsted's  Digest  of  N.  Jej-sey  Rep'ts. 

English  Ecclesiastical  Rej)orts,  2  vols.  Hanunond's  Treatise  on  Nisi  Prius. 

English   Exchequer  Reports,   vol.  1,  Hannnond  on  Parties  to  Action. 

new  series — continuation  of  Mee-  Hare  on  the  Discovery  of  Evidence  by 

een  and  Welsby.  Bill  and  Answer  in  Ecpiitj',  1837. 

Equity  Draftsman,  by  Van  Heythuy-  Hardre's  Reports. 

sen,  with  Notes,  by  Hughes,  1832.  Harrison's  Chancery,  2  vols. 

J^spinasse  on  Penal  Actions.  Harrison';i5   Digest   of  Cases    Deter- 
Espinasse's  Reports,  G  vols.  mined  in   the    House   of  Lords, 

Espinasse's  Nisi  Prius,  2  vols.  Courts   of   Common    Law    and 

Fearne  on  Contingent  Remainders.  Courts  of  Bankruptcy,  from  175G 

Fell  on  Mercantile  Guanmty.  to  1848,  C  vols,  large  8vo. 

Federalist — by  Hamilton,    Madison,  Harrison's  Digested  Inclex,  3  vols. 

and  Jav.  Hawkins's  Pleas  of  the  Crown,  2  vis. 

Field's  Analysis  of  Blackstone.  HAYDEN'S  LAW  and  PRACTICE 
Fitzherbert's  Natura  Brevium.  of  JUSTICES,  in  their  IMiscella- 

Fonldanqiie's   Eciuity,  2  vols.,    new  neons  Duties  and  Jurisdiction — 

edition,  with  Notes,  by  Laussat.  1850. 

Foster's  Crown  Law.  Highmore  on  Lunacy. 

Francis's  Maxims  in  Equity,  by  Hen-  Hill's  New  York  Reports. 

ing.  Hilliard's  Ai)ridgment,  2  vols. 

Gallison's  Circuit  Court  Reports.  llinde's  Practice  in  Ciiancery. 

Gilbert's  Evidence.  Hobart's  Reports,  by  AVilliams. 

Gilbert  on  Rents.  Hotiinan's  New  York  Chancery  Prac- 
Gili)ert  on  Devises.  tice,  2  vols. 

Gilbert  on  Ejoetment.  HofiVnan's  Legal  Study,  2  vols.,  new 
Gilbert's  Cases  in  Law  and  Equity.  edition,  enlarged. 

Gilbert's  Common  Pleas.  Hoflfinan's  Master  in  Chancery. 

Gilbert's  Distress  and  Replevin.  Holcomb's  Leading  Cases  upon  Com- 
Gilp-in's  Reports,  (Decisions  of  Judge  mercial  Law. 

Hopkinson.)  Holt's  Law  of  liibel. 

Gordon's  Digest  of  Revenue  Laws.  Hopkins's  Chancery  Reports. 

Gordon's  Digest  of  Laws  of  U.  States.  Hovenden  on  Frauds,  2  vols. 

Gould's  Pleading,  2d  edition.  Hovenden's  Supplement  to  Vesey,jr., 
Gow  ou  Partersliip.  2  vols. 


14  Little  and  Go's  Law  Catalogue. 

Howard's    Siipreinc    Co\irt   Special  IM'Cord's  S.  C.  Reports,  4  vols. 

Term  Reports,  wiiji  the  Points  Macnaily's  Evidence,  2  vols. 

of  Practice   decided,   4  vols. —  Maddock's  Chancery,  2  vols. 

large  type.  Maddock's  English  ClianceiyReports, 
Howard's    Supreme     Coui-t    United  6  vols,  in  3. 

States  Reports,  7  vols.  Manning's  Digest  of  Nisi  Prius  Re- 
Hughes  on  Insurance.  ports. 

Inirersol's  Digest  of  Laws  of  U.  S.  Mason's  Circuit  Court  Reports,  5  vols. 

Ingersol's  Translation  of  Rocus  on  Massachusetts  Reports,  17  vols. 

Insurance.  JMatthews  on  Presumptive  Evidence. 

Jacob's  Law  Dictionary,  6  vols.  Maule  &  Sehvyu's  Reports,  G  vols. 

Jacob  and  Walker's  Chancery  Rep'ts.  Meeson  and  Welsby's  Exchequer  Re- 
Jacobsen's  Sea  Laws.  ports,  16  vols. 

Jarman  on  Wills,  2  vols.  Merivale's  Chancery  Reports,  3  vols. 

Jeremy's  Equity  Jurisdiction  of  the  Metcalf's  Massachusetts  Reports,  12 

Court  of  Chancery.  vols. 

Johnson's  New  York  Reports,  20  vols.  Minot's  Massachusetts  Digest. 

new  edition.  Mitford's  Chancery  Pleadings,    new 
Johnson's  N.  Y.  Chancery  Reports,  edition,  by  Edwards— si 833. 

7  vols.  Monell's    Practice,    adapted  to    the 
Johnson's  New  York  Cases,  3  vols.  Code. 

Johnson's. Digest  of  New  York  Re-  Montagu  on  Set-OfT. 

ports  and  Supplement,  3  vols.  Montagu  on  Lien. 

Jones  on  Bailments,  new  edition.  Montagu  on  Partnership,  2  vols. 

Juryman's  Guide.  IVIontefiore's  Mercantile  Laws. 

Kelvii"''s  Reports.  Montefiorc's  Notarial  Precedenis. 

Keiit's"  Conunentaries,   4  vols.,    6th  ]\Ioore's   Index  to  Term  Reports,  2 

edition.  vols. 

Kj'd  on  Awards.  Mosely's  Chancery  Reports. 

Laws  of  United  States,  bv  Story,  4  vs.  Moulton's  Chancery  Practice  of  the 
Laws  of  United  States,  9  vols.,  Bio-  State  of  New  York,  3  vols. 

ren's  edition.  Maxims  in  Law  and  Equity,  by  Hen- 
Laws  of  New  York,  revised,  3  vols.,  ing. 

2d  edition.  Newland's  Chancery  Pi-actice,2  vols. 

Law  of  Bailments,  by  Jones.  NeAvland  on  Contracts. 

Law  of  Carriers,  bv  Jeremy.  Norris's  Peake's  Evidence. 

Law  of  Fixtures,  by  Amos  &  Ferard.  Noy's  Maxims,  by  W.  W.  Hening. 

Law  of  Lien,  by  Whittaker.  Ohio  Reports,  condensed,  4  vols,  in  1. 

Law  of  Patents,  by  Fcssenden.  Oliver's  American  Precedents. 

Law  of  Patents,  bv  Phillips.  Oliver's  Practical  Conveyancer. 

Law  of  Slavery,  by  Wheeler.  Oliver's  Law  Sununary. 

Law  Glossary.'  Paine's  Circuit  Court  United  States 
Law  LibraiT,  65  vols.  Reports. 

Lawes  on  Pleading  in  Assumpsit.  Paine  &  Duer's  Practice,  2  vols. 

Lawes  on  Charter  Parties.  Paige's  Clianceiy  Reports,  10  vols. 

Lawyer's  Common-place  Book.  Paley  on  Agency. 

Leach's  Crown  Law.  Park  on  Insurance. 

Leigh's  Nisi  Prius,  2  vols.  Peake's  Evidence  by  Randall. 

Lex°Mercatoria  Americana  Peake's  Evidence  by  Norris. 

Livingston's  Penal  Code  of  Louisiana.  Peere  Williams's  Chancery  Reports, 
Lilly's  Entries,  2  vols.  3  vols. 

Livermorc  on  Agency,  2  vols.  Peters's  Admiralty  Reports,  2  vols. 

Lockwood's  Reversed  Cases.  Peters's  Circuit  Court  United  States 
Lon"-  on  Sales.  Reports,  for  Tliird  Circuit. 

Lofft's  Reports.  PETERS'S  SUPREME  COURT  U. 
Lovelass  on  Wills,  &c.  S.  REPORTS,  17  vols. 


Little  and  Co's  Law  Catalogue. 


15 


Peters's  coiulfiiised  United  States  Re- 
])oits, ()  vols. 

Phillips  on  ICvidence,  2  vols. 

Phillips's  l)i<;est  of  Pickering's  Rep. 

Pliillil)s  on  Insnraucc,  2  vols. 

Phillips  on  Patents. 

Pickering's    JMassachusetts   Reports, 
24  vols. 

Pothier  on  Obligations,  by  Evans,  2 
vols. 

Pothier  on  Contract  of  Sale. 

Powell  on  Mortgages,  by  Coventry, 
',i  vols. 

Powell  on  Contracts. 

Powell  on  Devises. 

Powell  on  Powers. 

Preston  on  Estates,  2  vols,  in  1. 

Preston  on  Legacies,  1  vol. 

Preston  on  Abstracts  of  Title,  3  vols, 
in  2. 

Precedents  in  Chancery. 

Park's  Law  of  Dower. 

Petersdorft"'s  Abridgment,  15  vols. 

Rawle   on   the   Constitution   of   the 
United  States. 

Ray's  IMedical  Jurisprudence. 

Reeve's  English  Law,  4  vols. 

Reeve's  Domestic  Relations. 

Reeve  on  Descents. 

Richardson's    Supreme    Couat    Re- 
ports. 

Robinson's  Admiralty  Reports,  6  vols. 

Roberts  on  Frauds,  new  edition. 

Roberts  on  Fraudulent  Conveyancing 

Roberts  on  Wills  and  Codicils,  2  vols. 

Root's  Connecticut  Reports,  2  vols. 

Roscoe  on  Civil  Evidence. 

Roscoe  on  Criminal  Evidence. 

Roper  on  Wills. 

Roper  on  Legacies,  2  vols. 

Rojjcr  on  Law  of  Husband  and  Wife, 
2  vols. 

Rutherford's  Institutes,  new  edition. 

Rules  of  the  Court  of  Appeals. 

Rules  of  the  Supreme  Court. 

Rules  of  the  Superior  Court. 

Rules  of  the  U.  S.  Circuit  Court. 

Russell  on  Crimes  and  Misdemean- 
ors, 2  vols. 

Russell's  Chancery  Reports. 

REVISED  STATUTES  OF  NEW 

YORK,  ie4i»,  3  vols. 
Salkcld's  Reports,  by  I'2vans,  3  vols. 
Sanders  on  Uses  and  Trusts. 
Sanford's  Superior  Court  Repoits,  1 
vol. 


Saunders'  Reports,  by  Williams  and 
Patterson  3  vols. 

Saunders  on  Pleadiiiasand  Evidence, 
2  vols,  new  edition. 

Scaton's  Forms  of  Decrr-es  iti  Equity. 

Sedwiek's  Measure  of  Damages. 

Sehvyn's  Nisi  Prius,  by  Wheaton  and 
Wharton,  2  vols. 

ScIIon's  Practice  Courts  of  K.  B.  and 
C.  P.  2  vols. 

Sergeant  on  Constitutional  Law, 

Sergeant  &  liOwber's  Eug.  Com.  Law 
Rep.,  condensed. 

SESSION  LAWS  OF  N.  YORK. 

Sheppard's  Touchstone,  3  vols,  in  2. 

Spence's  (George)  Equitable  Juris- 
diction of  the  Court  of  Chance- 
ry, vol.  1st. 

Starkic's  Nisi  Prius  Reports,  2  vols. 

Starkie  on  Slander. 

Starkie  on  Criminal  Pleading.  j] 

Starkie  on  Evidence,  2  vols,  new  cd.    'i 

STEPHENS'S  NEW  CO.■^LME^  -  j 
TARIES  OF  THE  LAWS  Oi  / 
ENGLAND,  4  vols.  /l 

STEPHENS'S  NISI  PRIUS,  3  vols. 

Stephens  on  Civil  Pleading,  new  edi- 
tion. 

Stevens  on  Average. 

Stevens  &-  Benecke  on  Marine  Insu- 
rance, by  Phillips. 

STORY  ON  AGENCY. 

STORY  ON  BAILMENT. 

Storv  on  Bills  of  Exchange. 

STORY  ON  CONFLICT  OF 
LAWS. 

STORY  ON  THE  CONSTITU- 
TION, 3  vols. 

Storv  on  Law  of  Contracts. 

STORY  ON  SALES. 

STORY  ON  PARTNERSHIP. 

STORY  on  PROMISSORY  NOTES 

Storv's  Circuit  Court  Reports. 

STORY'S  EQUITY  JURISPRU- 
DENCE, 2  vols. 

STORY'S  ECiUITY  PLEADINGS. 

STORY'S  PLEADINGS,  by  Oliver. 

Sugden's  Letters  on  Property. 

Sugden  on  the  Law  of  Vendors,  2 
vols.,  imp.  edition. 

Sugden  on  Powers. 

Supplement  to  Johnson's  Digest. 

Sullivan's  Lectures  on  Feudal  Law, 
2  vols. 

Sumner's  Circuit  Court  Reports,  con- 
tinuation of  Mason. 


i 


16 


Little  Sf  Co.'s  Law  Catalogue. 


Siippleineiit  to  Vesey,  Jr's,  Reports, 

by  Hovciidcn,  2  vols. 
Supplement  to  Petersdorff 's  Abridg- 
ment, 2  vols. 
Swanston's  Chancery  Reports,  3  vols. 
Snineburue  on  Wills,  3  vols. 
Swiit  on  Evidence. 
Swift's  Digest,  2  vols. 
Stearns  on  Real  Actions,  nev*'  ed. 
Taunton's  Reports,  8  vols. 
Taylor's  Law  Glossary. 
Thomas's  Coke  upon  Littleton..*?  vs. 
Tidd's  Practice,  3  vols. 
Tidd's  Appendix,  by  Caines. 
Tillinghast's  Forms. 
Toller's  Law  of  Executors,  new  ed. 
Tomlin's  Index  to  Crown  Law. 
Tomlin's  Law  Dictionary,  by  Gran- 
ger, 3  vols.  1836. 
Trial  of  Robert  1\L  Goodwin 
Trials  of  Smith  and  Ogden. 
Trial  of  Aaron  Burr  for  Treason,  2 
vols. 
J     f>  ,'  of  Judge  Peck. 
.     .  TED  STATES  DIGEST,  3  vols. 

Supplement  to  do.,  2  vols. 
United  States  Statutes  at  Large,  8  vols. 
Tal)le  of  Cases,  1  vol. 
Annual  volumes   for  1847,   1848, 
1849,  3  vols. 
United  States  Session  Laws. 
Vattel's  Law  of  Nations,  by  Chitty 
Vesey  Jr's,    Chancery    Reports,  20 

vols. 
Vesey  and  Beames's   Chancery  Re- 
ports, 3  vols,  in  2. 
Vesey   Sen's,  Chancery  Reports,    2 
vols. 


Vernon's  Chancery  Reports,  by  Rath- 

by,  2  vols. 
Van  Heythuysen's  Equity  Draftsman, 

new  edition,  by  Hughes,  1837. 
Warren's  Law  Studies. 
Wai-ren's  Moral,  Social  and  Profes- 
sional Duties  of  Attorneys,  12mo. 
Washington's  Reports  Circuit  Court 

United  States,  4  vols. 
Welford's  Equity  Pleadings. 
Wendell's  Reports,  (continuation  of 

Cowen,)  26  vols. 
Wendell's  Digest. 
Wentworth's  Pleadings,  10  vols. 
Wentworth's  Index  to  do. 
Wentworth  on  Executors. 
Whai-ton's  American  State  Trials. 
Wheaton's  Reports  Supreme  Court. 

United  States,  12  vols. 
Wheeler's  Criminal  Cases,  3  vols. 
Wheeler's    Abridgment   of   all    the 

American  Reports,  8  vols. 
Wheeler's  Law  of  Slavery. 
Wheaton's  Digest,  2  vols. 
Wheaton  on  Captures. 
Wheaton's  International  Law. 
Wigram  on  Discovery. 
Willes's  Reports. 
Wilson's  Reports,  3  vols. 
Williams  on  Executors,  2  vols. 
Williams's  Caseslin  Equity,  Temp. 

Talbot. 
Williams's  (Peere,)  Chancery  Rep'ts., 

3  vols. 
Woodfall's  Landlord  and  Tenant. 
Woodeson's  Lectures,  3  vols. 
Yelverton's  Reports,  by  Metcalf. 
Yates's  Forms  of  Pleading. 


LITTLE  &  CO., 

Law  Booksellers,  JYo.  53,  State  Street,  Jilhany. 


1 


I 


AA    000  760  066 


ri 


i! 


'"*'■•'■' '■IV^M'T''-' 


